HKSAR v. Hong Kong Alliance in Support of Patriotic Democratic Movements of China and Others

[English Translation - 英譯本]

HCCC 155/2022

[2026] HKCFI 4794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRTIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 155 OF 2022

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REASONS FOR VERDICT

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Table of content

Annex

I.  Introduction

1.This is the Verdict and Reasons for Verdict in respect of the charge against the first defendant, the second defendant and the fourth defendant (“the Alliance”, “D2” and “D4” respectively) in the present case. The core issue in question concerns the Alliance’s Action Agenda of “ending one-party dictatorship”

2.The aforementioned three defendants are jointly charged with the third defendant HO Chun-yan (“D3”) with one count of “Incitement to subversion”, contrary to Articles 22 and 23 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region[1] (“NSL”). The particulars of offence in the indictment[2] allege that the defendants:

“… between the 1^st day of July, 2020 and the 8^th day of September, 2021, both dates inclusive, in Hong Kong, incited other persons to organize, plan, commit or participate in acts by unlawful means with a view to subverting the State power, namely overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China, or overthrowing the body of central power of the People’s Republic of China.”

3.As supplemented by the prosecution, the “unlawful means” alleged in the charge was:

“ending leadership by the Communist Party of China, contrary to the Constitution of the People’s Republic of China (in particular, Article 1 and the Preamble)”[3]

4.D3 pleaded guilty on the first day of trial[4]; the other defendants pleaded not guilty. Needless to say, the Court will not draw adverse inferences against the other defendants because of D3’s guilty plea. With respect to the defendants who pleaded not guilty, the prosecution bears the burden of proof and must prove the charge against them beyond reasonable doubt.

5.It is necessary for this Court to emphasise that the defendants are put on trial not because of their political views or beliefs. Neither does the charge in question concern any issue relating to democracy, the June 4^th Incident or criticisms against the State. The Court will not compare the Constitution and political system of this country and those of other countries, and will only consider the relevant laws and the evidence in the case to determine whether the prosecution is able to prove the charge beyond reasonable doubt.

6.Furthermore, the provisions in the NSL are non-retrospective[5]. The words and deeds of the defendants prior to the implementation of the NSL do not form the subject of the charge. They only form the background to the evidence relevant to the charge.

II.   Prosecution case and its main points

7.The prosecution submitted that the “unlawful means” alleged in the charge includes acts which do not involve violence but are contrary to the provisions of the Constitution of the People’s Republic of China (“the Constitution”). The prosecution further stated that “all acts with a view to subverting the State power are unlawful”. This is because “all acts with intent to subvert the State power by themselves must already be unlawful or not permitted by law, and the same is also true of inciting other persons to do such acts”[6].

8.According to the prosecution’s written opening (“the Opening”)[7], the foundation upon which the present charge is based is the Amendment to the Constitution adopted at the First Session of the Thirteenth National People’s Congress on 11 March 2018 (“the 2018 Amendment”). The prosecution submitted that the Amendment expressly established leadership by the Communist Party of China (“CCP”) as part of the country’s constitutional and fundamental system[8]. The prosecution stated that “ending one-party dictatorship”, being one of the Alliance’s Five Action Agendas, not only contravened the Constitution but also fell within “other unlawful means” stipulated in NSL 22[9]:

“7. Based on the further and better particulars furnished by the prosecution earlier on 19^th April 2024 and 23^rd September 2024, the crux of the case is whether ‘ending one-party dictatorship’, as openly expressed, advocated or publicised by the Alliance as one of its Five Action Agendas, carried an implication capable of constituting the ‘unlawful means’ by which other persons incited were to carry out acts with a view to subverting the State power as charged, and whether acts of ‘overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China, or overthrowing the body of central power of the People’s Republic of China’ were involved, thereby constituting ‘acts subverting the State power’.”

9.The prosecution alleged that the defendants’ acts were inciting:

“11. Although the evidence in the case shows that the defendants’ inciting acts were carried out in the name of so-called democracy or the June 4^th Incident, and in conjunction with negative content against the State, this is not a political trial, and does not involve any issue relating to democracy, the June 4^th Incident or criticisms against the State. The defendants made use of the relevant issues to carry out the inciting acts in question. The crux is the subversive aim and intent of their incitement. They provoked sentiments such as disgust and hatred among the people towards the State power through the negative content, which served as a means to strengthen the effects of their incitement. The fact that the relevant content was negative is merely an objective fact which the Court can consider as part of the evidence when considering whether the defendants incited and intended other persons to subvert the State power. More importantly, the case does not at all involve any issues relating to the pros and cons of the Constitution, history and political system of the country. Whether the Constitution is in line with democracy as raised by the defendants, the negative content against the State in the defendants’ remarks, etc. are simply irrelevant to the case and need not be dealt with by the Court.

…

13. As such, the natural and reasonable consequence of the words “end one-party dictatorship” was to end leadership by the Communist Party. This was the goal and an implication of subverting the State power was present.”

10.Furthermore, the prosecution alleged that the defendants intended to incite other persons to act by “unlawful means”; that is, to act contrary to the Constitution:

“14. Even if the natural and reasonable consequence of ‘ending one-party dictatorship’ is capable of constituting the alleged inciting act, the Court must still consider whether the inciters had the necessary inciting intent before being satisfied that the offence of incitement is made out. In gist, the inciter must have the intent that the incitee would use ‘unlawful means’ to overthrow the State power.

15. As shown by the evidence, the context and circumstances under which the Alliance used the relevant words include using so-called democracy or the June 4^th Incident in conjunction with negative content against the State to advocate and publicise the Alliance as an organization and its propositions. The proposition of ‘ending one-party dictatorship’, as advocated and publicised by the Alliance as one of its Five Action Agendas, must necessarily be one of subverting the State power by adopting acts contrary to the Constitution; that is, by “unlawful means”. “Unlawful means” does not have to be acts involving force or acts akin to force. Although the defendants may not have mentioned expressly and/or in detail specific plans or means to achieve the unlawful goal when using the words in question, the natural and reasonable consequence of those words was aimed at ending leadership by the Communist Party of China, and the acts and means involved must necessarily be contrary to the Constitution (in particular, the Preamble and Article 1 mentioned above). The Constitution expressly provides that the State being a socialist state and leadership by the Communist Party of China are parts of the constitutional and fundamental system of the State. There is no lawful means by which to end the fundamental system of leadership by the Communist Party of China.”[10]

(emphasis added)

III.  Relevant legal principles

11.Some points of law were actually considered and dealt with when this Court heard the motion of “no case submission” from the defence. Merely for the sake of convenience, we will first set out certain legal principles relevant to the charge to avoid repetition when we give our detailed reasons for the ruling on the no case submission.

A.  “Subversion of State power” (“subversion”)

A.1  Prohibited acts

12.NSL 22 stipulates that:

“A person who organizes, plans, commits, or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:

(1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;

(2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;

…”

13.It is noteworthy that the particulars of the offence state in the alternative the two “acts with a view to subverting the State power” (“Prohibited Acts”) quoted above; that is, planning, organizing, committing or participating in:

(1)  Overthrowing or undermining the basic system of the People’s Republic of China (“basic system”) established by the Constitution of the People’s Republic of China (“Prohibited Act (1)”); and

(2)  Overthrowing the body of central power of the People’s Republic of China (“body of central power”) (“Prohibited Act (2)”).

However，the prosecution (in replying to the halfway submission by the defence) conceded that on the circumstances and evidence of the case, Prohibited Act (2) is not independent but attached to Prohibited Act (1). The prosecution submitted that on the basis that “all state organs … must treat the Constitution as the fundamental standard of conduct; they shall have a duty to uphold the sanctity of the Constitution and ensure its compliance”[11], Prohibited Act (1) must necessarily result in Prohibited Act (2). As regards the evidence and facts of the case relied on by the prosecution, the evidence on Prohibited Act (2) is the same as that on Prohibited Act (1), both being based on the proposition and Action Agenda of “ending one-party dictatorship” the Alliance had long been advocating. In other words, if the prosecution fails to prove Prohibited Act (1), Prohibited Act (2) will also fall away. If this were the case, why did the prosecution need to state both (1) and (2) in the charge? The prosecution said that it was because if a defendant had committed both at the same time, there would be a difference in sentence. However, in any event, the Court can independently consider whether the subversive act in each of the allegations is made out. Even if only one of them is proved, it shall suffice to support the charge.

A.2   Elements of offence

14.In HKSAR v Yeung Suet Ying Clarisse & Ors[12], the Court of Appeal (“CA”) elaborated in detail the primary legislative purpose of the NSL, which we will not repeat. According to the case, the substantive offence of “subversion” has the following elements:

(1)  Organizes, plans, commits or participates in one of the four prohibited acts;

(2)  By force or threat of force or other unlawful means; and

(3)  With a view to subverting the State power.

The first two elements together constitute the actus reus of the offence. The third element stipulates the requisite mens rea to complete the offence, which is a specific intent to subvert the State power.

A.3  “Other unlawful means”

15.In HKSAR v Yeung Suet Ying Clarisse & Ors, supra, the CA explained in detail the meaning of the phrase “other unlawful means” in Article 22:

(1)  The NSL aims at effectively preventing, stopping and punishing all acts and activities endangering the constitutional order of the Hong Kong Special Administrative Region, whether or not those acts or activities involve force;

(2)  In order to give effect to the above legislative purpose, the ejusdem generis rule does not apply. The phrase “other unlawful means” includes any unlawful means other than “by force or threat of force”, and is not limited to criminal acts; and

(3)  “Other unlawful means” can include breach of constitutional duty[13] and serious interference in the constitutional order established by the Basic Law[14].

Not only is the above judgment applicable to the present case but it is also binding on the lower courts. We shall defer to it.

16.Due to reasons that will be given below, we are of the view that the Constitution and the Basic Law (“BL”) have jointly established the constitutional order of the Hong Kong Special Administrative Region (“HKSAR”). Although not implemented in Hong Kong in its entirety, certain provisions of the Constitution are directly applicable in Hong Kong, including the following:

(1)  “Leadership by the Communist Party of China” is the core of the “fundamental system” established by the Constitution[15]；

(2)  Citizens of China must fulfill the obligations prescribed by the Constitution and the law[16].

17.Applying HKSAR v Yeung Suet Ying Clarisse & Ors to the present case, we are of the view that “other unlawful means” stipulated in NSL 22 can include any act contrary to the stipulations of the Constitution with the aim of overthrowing or undermining the “fundamental/basic system”, whether or not those acts involve force, threat of force or other criminal offences.

A.4  “Overthrowing” and “undermining”

18.The NSL does not define the above terms but the Court may refer to explanations in dictionaries: see HKSAR v Lui Sai Yu[17]。

19.Although they cited different dictionaries, the prosecution and D2 defined the term “overthrowing” in more or less the same way. According to the Modern Chinese Standard Dictionary (4^th Edition) (《現代漢語規範詞典》（第四版）) cited by the prosecution, “overthrow” can mean:

(1) to push over (e.g. table); (2) to topple (original regime) or change (social system); and (3) to completely negate (existing statement, conclusion, decision, etc.). Meaning (2) of “overthrow” differs from “subvert”; the former mostly refers to open action and is a neutral term, whereas “subvert” usually refers to conspiratorial action using covert means and generally carries a pejorative connotation.

D2 cited the explanation in the Grand Chinese Dictionary (《漢語大詞典》) as follows:

(1) to push over something standing upright; (2) to defeat the original regime or social system; and (3) to negate an existing statement, plan, decision, etc.

And the explanations according to A Dictionary of Current Chinese (7^th Edition) (《現代漢語詞典》（第七版）) are as follows:

(1) to use force to defeat the old regime, so as to thoroughly change the situation; and (2) to fundamentally negate a subsequent statement, plan, decision, etc.

20.D4, however, tried to explain “overthrowing” from various dimensions. In sum, according to her, the act includes the following elements: (1) the presence of an extrinsic force; (2) in an abnormal manner; (3) quickly and vigorously; and (4) to change a certain order or the status of something.

21.On “undermining”, the Modern Chinese Standard Dictionary explains it as：

(1) to cause damage or harm to; (2) to reform, eliminate; (3) to disobey, contravene.

22.D4 submitted that undermining does not necessarily mean thorough or quick, and can even include damage from within, not involving any extrinsic force.

23.This Court is of the view that although explanations in dictionaries carry certain reference value, more importantly, “overthrowing” and “undermining” have to be understood in the context and in light of the surrounding provisions of NSL 22. This Court agrees that:

(1)  “Overthrowing” a system generally refers to a radical and fundamental change, which causes it to lose its existing order or status, and, furthermore, such change is not a spontaneous one from within the system, but one brought about by an extrinsic force. Although generally speaking, something or some system being “overthrown” is a result that happens suddenly, but it can also be the result of a lengthy process; and

(2)  “Undermining” generally means causing damage or harm to something, as well as to be in breach of something. As commonly understood, “undermining” some system does not necessarily involve violence. It can also be done by sowing discord, creating division, causing others to lose confidence in the system, etc.

24.However, as stated above, the “unlawful means” employed to carry out the “prohibited acts” within the meaning of NSL 22 does not necessarily involve violence or threat of violence. Hence, imposing such a requirement for “overthrowing” or “undermining” would give rise to an internal contradiction. Secondly, as a matter of common sense, “overthrowing” a certain system can be done through various means, including causing damage to the system to eventually bring about its total collapse. As such, if “undermining” does not necessarily involve violence or threat of violence, the same is also true of “overthrowing”.

25.This Court bears in mind that NSL 22 deals with a “crime of specific intent”: see HKSAR v Yeung Suet Ying Clarisse & Ors, supra. Nevertheless, in light of our understanding of “overthrowing” and “undermining” as above, if a person deliberately “overthrows” or “undermines” the “basic system” by “unlawful means”, it would be inconceivable to us that he or she does not do so with the goal of “subverting the State power”.

B.  “Incitement to subversion” (“incitement”) (“煽動罪”)

B.1  Common law “incitement” (“煽惑”) (“common law incitement”)

26.“Common law incitement” generally refers to encouraging, persuading, proposing to, or even threatening another person, or pressuring another person: see R v Goldman[18]. The elements of the offence of “common law incitement” can be summarised as follows:

(1)  A defendant instigates another to do or cause to be done an act which, if done, will involve the commission of the offence by the other; and

(2)  A defendant intends or believes that the other, if he acts as incited, will do so with the fault required for the offence.

27.(1) above is the actus reus of “common law incitement”, and (2) is the mens rea of the offence; see Mak Sun-Kwong v R[19]; Invicta Plastics Ltd v Clare[20]; and DPP v Armstrong (Andrew)[21].

28.It must be noted that even if the incitee does not have any intention to or is not prepared to commit the crime, or eventually does not commit the crime, the inciter can still be found guilty of the offence of “incitement”: HKSAR v Jariabka Juraj[22]; R v Most[23]; and Young v Cassells[24].

B.2  “Incitement” (“煽動罪”)

29.NSL 23 stipulates that：

“A person who incites, … the commission by other persons of the offence under Article 22 of this Law shall be guilty of an offence. …”

30.The Court of Final Appeal (“CFA”) noted in HKSAR v Lui Sai Yu[25] that the court shall construe the NSL in accordance with the common law approach.

31.HKSAR v Ma Chun Man[26] is about the offence of “incitement” under NSL 20 and NSL 21. The CA held that the offence of “common law incitement” in local laws is similar in nature to “incitement” under NSL 21. Hence, the gravamen of the offence of “incitement” can be stated as:

(1)  To stop people from inciting (including by way of persuading or encouraging) others to commit the offence of secession, even if no one so incited carried out the crime; and

(2)  To allow intervention of the law at the earliest possible stage to stop a person who has been incited from carrying out the offence of secession.

32.In our view, having regard to the principle-based stipulation under NSL 3(3)[27]，the gravamen of “incitement to subversion” under NSL 22 and NSL 23 can be similarly stated as follows:

(1)  To stop people from inciting (including by way of persuading or encouraging) others to commit the offence of subverting the State power, even if no one so incited carried out the crime; and

(2)  To allow intervention of the law at the earliest possible stage to stop a person who has been incited from carrying out the offence of subverting the State power.

B.3    Elements of offence

33.Applying the above legal principles, this Court is of the view that for the offence of “incitement”, the prosecution must prove:

(1)  the defendants instigated other persons to do or cause to be done any one or more than one of the “prohibited acts” set out in NSL 22; and

(2)  the defendants intended or believed that, if the person incited acted as incited, he or she would use force, threat of force, or other unlawful means, with a view to subverting the State power.

34.In determining whether the defendants’ activities constituted incitement, we will have regard to all the circumstances of the individual cases in question, including, but not limited to, the substance of the activities, their target audience, the circumstances under which they were conducted, etc.

35.In HKSAR v Yeung Suet Ying Clarisse & Ors, supra, the CA accepted the parties’ common position that as a general proposition, a genuine and honest belief held by an accused that the means adopted is lawful, while not a defence, is a matter of evidence relevant to the question of whether he has the specific intent to subvert. This Court will adopt a similar view; that is, a genuine and honest belief (or possible genuine and honest belief) by the defendants that their acts were lawful, though not sufficient as a defence to the offence of “incitement”, will be evidence in their favour, tending to show that the defendants did not have the requisite mens rea for the offence of “incitement”. On the other hand, if the evidence shows that the defendants intended or believed that those instigated would employ means including force, threat of force or other unlawful means to subvert the State power, the argument of “genuine and honest belief” will become untenable, for no person would genuinely and honestly believe that encouraging others to subvert the State power is lawful.

B.4  Territorial scope / Jurisdiction

36.On the territorial scope of the charge, the prosecution relies on the acts of incitement being done in Hong Kong, and the recipients receiving the inciting content also within Hong Kong[28]. Carrying out “ending one-party dictatorship” by unlawful means in Hong Kong in contravention of the Constitution must necessarily constitute the substantive offence under NSL 22. If “ending one-party dictatorship” is carried out outside Hong Kong after the inciting content is received, the deciding question is whether the person concerned is “a permanent resident of the Hong Kong Special Administrative Region or an incorporated or unincorporated body such as a company or an organization which is set up in the Region”. If so, the substantive offence under NSL 23 is committed.

37.Based on the prosecution case, the following NSL stipulations on the jurisdiction of the court are relevant to the present case:

(1)  Irrespective of whether the person concerned is a permanent resident of the HKSAR or an organization which is set up in the Region, an offence shall be deemed to have been committed in the Region if an act constituting the offence or the consequence of the offence occurs in the Region: Article 36; and

(2)  The NSL shall also apply to a person who is a permanent resident of the HKSAR or an organization which is set up in the Region if the person or the organization commits an offence under the NSL outside the Region: Article 37.

38.In view of the above, and taking into account all the elements of the offence of “incitement”, in respect of the present charge, apart from having to prove the defendants, during the charge period, in Hong Kong, did instigate other persons to do or cause to be done “Prohibited Act (1)” or “Prohibited Act (2)”, the prosecution must also prove the following before this Court can assume jurisdiction in the present case:

(1)  If the person instigated is a permanent resident of the HKSAR, the defendants intended or believed that if the former acted as instigated by them, he or she would use force, threat of force or other unlawful means, with a view to subverting the State power.

(2)  If the person instigated is not a permanent resident of the HKSAR, the defendants intended or believed that if the former acted as instigated by them, he or she would, within the territory of Hong Kong, use force, threat of force or other unlawful means, with a view to subverting the State power.

The two differ mainly in that (1) is not subject to territorial constraint.

39.This Court has explained in detail above the meaning of “unlawful means”. We hereby add that in our view, the “unlawful means” in (1) above refers to acts contrary to the laws in Hong Kong, including the Constitution, but not necessarily involving acts of violence or criminal offences.

40.It is worthy of note that as confirmed by the prosecution, the case was brought on the basis that the defendants, in Hong Kong, incited other persons to do acts contrary to the Constitution, with Hong Kong citizens being the target of the incitement. Neither the Opening of the prosecution nor its evidence contains allegations that the defendants incited Hong Kong or non-Hong Kong residents to do unlawful acts in the Mainland.

C.  The Constitution

C.1  Legal status of the Constitution in Hong Kong

41.In her halfway submission, D4 argued that：

“ ‘Leadership by the Communist Party of China’, as a provision under the Constitution, is not Hong Kong law and does not have legal effect in Hong Kong. Even if someone contravenes it, it could not possibly be ‘unlawful means’.”

42.Citing BL 18[29], D4 asserted that the Constitution is not listed in Annex III of the BL and has never even been applied in Hong Kong by way of promulgation or legislation. Hence, its provisions do not have direct legal effect in Hong Kong. Anyone who wishes to rely on “contravention of the Constitution” as a cause of action will only be met with immediate dismissal by the court. D4 cited the case of 梁偉珍及中海物業集團有限公司 [30] to support her argument.

43.This Court does not accept the above submission by D4 for the following reasons. Firstly, we do not agree that the case of梁偉珍及中海物業集團有限公司, supra, is of assistance to the present case because the plaintiff in that case acted in person and therefore was unable to assist the court on the law. Neither did the court conduct an in-depth analysis on the correct relationship between the Constitution and the BL, and how to construe BL 18. In addition, the court in that case was doubtful about the basis upon which the plaintiff’s case was founded because she simply failed to prove with sufficient evidence that the respondent or its employees had committed any tortious conduct or conduct that caused her to suffer damage[31]. Therefore, the determination on the applicability of the Constitution in Hong Kong by the court in that case was just an obiter dictum not binding on the lower courts. Furthermore, the court hearing that case is of the same level as this Court. As such, this Court is not bound by that judgment.

44.Secondly, according to Director of Immigration v Chong Fung Yuen[32], the approach to construing the BL (including BL 18) is one of contextual and purposive construction (as opposed to literal construction). In interpreting the BL with this approach, “context” is to be understood in its widest meaning. This Court does not agree that it is the purpose of BL 18 to exclude the Constitution from the constitutional and legal framework of the HKSAR because:

(1)  As a matter of law, the Constitution is the “fundamental law” superior to all other laws (including the BL) of the State, “has supreme legal force”[33], and is not “national law” in the general sense;

(2)  The Preamble to the Constitution stipulates that “The people of all ethnic groups, all state organs and armed forces, all political parties and social organizations, and all enterprises and public institutions in the country must treat the Constitution as the fundamental standard of conduct; they have a duty to uphold the sanctity of the Constitution and ensure its compliance”[34]. Article 33 stipulates that “All persons holding the nationality of the People’s Republic of China are citizens of the People’s Republic of China”, “Every citizen shall enjoy the rights prescribed by the Constitution and the law and must fulfill the obligations prescribed by the Constitution and the law”. BL 1 states at the outset that “The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”. Therefore, the Constitution is also the constitution of the HKSAR;

(3)  It is expressly written in the Preamble to the BL that the HKSAR was established “in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China”, “and under the principle of ‘one country, two systems’ ”. This confirms the relationship between the Constitution and the BL – not only is the former superior to the latter but it is also the “parent law” of the latter; the latter must not contravene the former. Furthermore, if the validity of the Constitution in Hong Kong is negated, this is tantamount to negating the very basis for the existence of the HKSAR and the BL; and

(4)  The composition as well as functions and powers of the National People’s Congress (“NPC”) are prescribed by the Constitution. The NPC is empowered by Article 62[35] of the Constitution to enact the BL. BL 12 states that “The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government”[36]; BL 13 and 14 stipulate that the Central People’s Government shall be responsible for “the foreign affairs relating to the Hong Kong Special Administrative Region”[37] and its “defence”[38]. The above provisions have made it clear from the outset that the HKSAR is not an independent sovereign entity: see Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 1)[39]. The power of amendment of the BL also belongs to the NPC[40]. Hence, the constitutional system of the HKSAR cannot possibly be decided entirely by the BL. Fundamental and core parts in the Constitution relating to constitutional order, national sovereignty, unity, territorial integrity, etc. should and must be applicable in Hong Kong.

In light of the above, this Court is of the view that the “national laws” excluded from application in Hong Kong by BL 18 cannot and does not include the Constitution.

45.Fourthly, NSL 22(1) provides indirect support for the contention that the Constitution is part of Hong Kong laws because the provision does not define “basic system” but directly points to the Constitution. This appears to imply that courts in the HKSAR may directly refer to the relevant provisions in the Constitution to ascertain the meaning of “fundamental/basic system”. If, as stated by D4, the Constitution must be introduced into Hong Kong through inclusion in Annex III of the BL, we would find it difficult to understand why the NPC did not directly define “basic system” in the NSL but mentioned the Constitution instead.

46.Fifthly, according to recent case law from a higher court, the Constitution and the BL together establish the constitutional order of the HKSAR: see HKSAR v Yeung Suet Ying Clarisse & Ors, supra[41]. On this, we note that the same statement also appears in s.3AA(1)(a), Interpretation and General Clauses Ordinance, Laws of Hong Kong (Cap 1). According to the latter, concrete manifestations of “upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China” include “upholding the constitutional order of the Hong Kong Special Administrative Region established by the Constitution of the People’s Republic of China and the Basic Law”. This Court has not overlooked the fact that s.3AA(1)(a) was only added to the Interpretation and General Clauses Ordinance in 2021. However, it is our view that the section clearly reflects the correct relationship between the Constitution and the BL and the relevant legislative intent: see HKSAR v Tam Tak Chi[42].

47.Taking all of the above into account, this Court considers that the correct view is that as the HKSAR is part of the State, the Constitution of the State also serves as the constitution of the HKSAR, and the foundation of its local laws, whereas the BL is a constitutional instrument enacted especially for Hong Kong in accordance with the Constitution. Complementing each other, they together establish the constitutional order of the HKSAR.

C.2  Scope of application of the Constitution in Hong Kong

48.Nevertheless, this is not to say that all provisions in the Constitution are applicable in the HKSAR and can be applied locally.

49.Article 31 of the Constitution stipulates that “The state may establish special administrative regions when necessary. The systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress”.

50.The Preamble to the BL particularly highlights:

“Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People’s Republic of China has decided that upon China’s resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, and that under the principle of “one country, two systems”, the socialist system and policies will not be practised in Hong Kong. The basic policies of the People’s Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration.”

BL 2, Chapter I specifies:

“The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”

BL 5 stipulates:

“The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”

51.It follows from the above that the Constitution permits Hong Kong to exceptionally practise a system other than the socialist system in the Mainland, and the NPC has made relevant provisions by law in the BL. As such, in the event of any discrepancy between individual provisions in the Constitution and the fundamental principle of “one country, two systems” and the scope of high degree of autonomy prescribed in the BL, the BL shall prevail. To the extent that parts of the Constitution are applicable in Hong Kong, we consider that they are capable of direct application without going through local legislation or other routes. On the basis of the prosecution case, we neither have to nor intend to compare the provisions of the Constitution and the BL one by one to determine which of them are applicable in the HKSAR and which are not. We only need to focus on considering those provisions in the Constitution that are relevant to the present case.

52.Having regard to the prosecution case, it is our view that those parts of the Constitution which are relevant to the present charge and involve the “fundamental/basic system” include, at least, the Preamble and Article 1. On the other hand, the defence, in halfway submissions, stated that Article 41 of the Constitution confers on citizens of the People’s Republic of China the right to criticise and make suggestions regarding any State organ or State employee; Article 57 stipulates that the NPC is the “highest state organ of power”; Article 61 concerns sessions of the NPC; Article 62 grants the NPC the functions and powers of “amending the Constitution” and “overseeing the enforcement of the Constitution”; Article 64 vests the power to propose amendments to the Constitution in the NPC and the Standing Committee of the NPC (“NPCSC”); and Article 67 stipulates that the NPCSC exercises the function and power of interpreting the Constitution and overseeing its enforcement.

C.3  Provisions in the Constitution relevant to this case

53.In any event, merely for the sake of argument, even if this Court has misunderstood the applicability of the Constitution in Hong Kong as above, on the basis that NSL 22 specifies overthrowing or undermining the “basic system” established by the Constitution as one of the elements of offence, it is necessary for us, in hearing this case, to refer to the relevant provisions in the Constitution to understand what it means. In our view, the Constitution may be relevant, or should not be ignored, when cases are heard by Hong Kong courts. For example, it is only by referring to the Constitution that various concepts (NPC, NPCSC, State Council, national flag, national emblem, etc.) appearing in the BL can be correctly understood. Moreover, it is well-established that Hong Kong courts shall respect and recognise the power of the NPCSC to independently interpret the BL and its exercise of that power under Article 67(4) of the Constitution. There are other situations in which the Constitution may also be relevant to legal proceedings in Hong Kong. Leung Chung Hang Sixtus v President of Legislative Council[43] is a case in point.

C.4  Construction of relevant provisions in the Constitution

54.Nonetheless, this gives rise to a further question, namely, whether in the absence of assistance from experts on the Constitution, members of this Court, as judges trained under the common law, and this Court, as a common law court, are capable of construing those provisions in the Constitution relevant to the present case on our own given the following considerations:

(1)  The Constitution is a law belonging to the civil law system;

(2)  The Constitution expressly provides that the right of interpretation belongs to the NPCSC; and

(3)  The BL does not expressly confer on courts in the HKSAR the function and power of interpreting the Constitution.

55.This Court has not overlooked the fact that despite NSL 65 similarly providing that the right of interpretation belongs to the NPCSC, this does not prevent local courts from construing the NSL using the common law approach when hearing cases involving national security. However, that is based on the important principle of “one country, two systems” repeatedly emphasised in the BL, the Decision of the NPC[44] and the NSL[45]. Furthermore, one of the fundamental drafting principles of the NSL is “accommodating the differences between Mainland China and the HKSAR, and striving to address the convergence, compatibility and complementarity between this Law, and the relevant national laws and the local laws of the HKSAR”[46]. The above reasons for using the common law approach to construe the NSL are difficult to apply directly to an exercise involving the Constitution. Neither the prosecution nor the defence supports doing so.

56.D4 in halfway submissions submitted that given that the prosecution had not called any expert on the Constitution to testify, this Court would not be able to determine the true meanings of the relevant provisions in the Constitution in the absence of a consensus between the prosecution and the defence. On the other hand, the prosecution and D2 jointly submitted that even without expert assistance on the Constitution, the Court would still be able to understand the obvious meanings of the relevant provisions by reference to the literal meanings and context of the provisions, and to make a determination in the case based on that. In light of Article 67(1) of the Constitution (the right of interpreting the Constitution belongs to the NPCSC), we can only act by adopting the literal and obvious meanings of the relevant provisions instead of attempting the construction of the provisions on our own.

57.This Court is of the view that if D4’s submission were correct, in the absence of expert assistance on the Constitution, the prosecution would be unable to bring a charge under NSL 22, and the Court would likewise be unable to render a verdict on the charge. If that were the case, the practical effect of that provision would inevitably be greatly diminished, contrary to the spirit of NSL 8. The latter stipulates that “The law enforcement and judicial authorities of the Hong Kong Special Administrative Region shall fully enforce this Law and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security, so as to effectively safeguard national security”. In addition, given that one of the guiding principles behind the drafting of the NSL was to “converge” with relevant national laws and local laws in the HKSAR, this Court is of the view that, provided that the literal meanings of the provisions in the Constitution are sufficiently clear, there is no reason in principle to object to relying on this as the basis for rendering a verdict on a charge under NSL 22. As Mr Shum, counsel for D2, pointed out, the CFA has likewise, in Lau Kong Yung v The Director of Immigration[47]considered the provisions in the Constitution according to their literal meanings.

58.Upon careful consideration, we reject D4’s submission and accept the joint submission by the prosecution and D2.

D.  Whether an act in breach of the Constitution constitutes an element of the offence

59.D4 submitted that since the Constitution regulates public power, an allegation of “breach of the Constitution” can only be directed against persons and institutions that wield public power, but not against ordinary citizens. If the organs of public power established by the Constitution consider it necessary to prohibit certain individual acts that do not conform to the spirit of the Constitution, they can only achieve such an objective by way of legislation — and the content of the legislation itself cannot go beyond the limitations on public power imposed by the Constitution. She emphasised that the mere expression of opinions disagreeing with the literal provisions of the Constitution cannot be labelled as “undermining”, especially when such opinions are based on the principles embraced by the Constitution itself. She contended that the “fundamental system” defined in Article 1 of the Constitution will not, in principle, be practised in Hong Kong since BL 5 stipulates that the socialist system shall not be practised in Hong Kong.

60.This Court does not agree with the above submission made by D4 for the following reasons: Firstly, although regulating public power is a primary objective of the Constitution, this does not mean that citizens have no obligation to abide by the Constitution. Quite the contrary, Article 33(4) of the Constitution stipulates that:

“Every citizen shall enjoy the rights prescribed by the Constitution and the law and must fulfill the obligations prescribed by the Constitution and the law.”

BL 42 also contains a similar provision:

“Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in the Hong Kong Special Administrative Region.”

61.Secondly, NSL 22 specifically mentions “the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China”, which serves precisely to criminalise acts in breach of the Constitution under certain circumstances.

62.In this case, this Court need not deal with the “proportionality” of NSL 22 and NSL 23 because the defence has not (and indeed, cannot) challenge their constitutionality. However, this does not mean that the values of human rights, freedom and the rule of law are inapplicable. We have not neglected the fact that the defendants enjoy rights such as the freedom of speech, association, and assembly, as safeguarded by the BL[48] and the Hong Kong Bill of Rights (“HKBOR”)[49]. Furthermore, the CFA has stated that, NSL 4 and NSL 5, which reflect representations made to the NPC and its Standing Committee, emphasise protection and respect for human rights and adherence to the values of the rule of law while safeguarding national security, and this is of central importance to the interpretation of the NSL. This Court also understands that freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong’s system and way of life. Therefore, the courts must give a generous interpretation to its constitutional guarantee: see HKSAR v Lai Chee Ying, supra. This Court will bear all of the above in mind while assessing the evidence and making findings of fact in this case.

63.On the other hand, freedom of speech is not absolute but carries with it special duties and responsibilities. It is therefore subject to certain restrictions as provided by the law, including “for the protection of national security” and “public order (ordre public)”[50]. Likewise, the right of peaceful assembly is not absolute and will be restricted in conformity with the law in the interests of factors such as national security and public order (ordre public)[51].

64.The CFA has reiterated time and time again that the concept of public order (ordre public) is not limited to public order in terms of law and order. This concept is neither absolute nor precise, nor can it be reduced to a rigid formula, but it includes the following:

(1)  Matters necessary for the protection of the general welfare or the interests of the collectivity as a whole, examples of which include: prescription for peace and good order; safety; public health; aesthetic and moral considerations; and economic order (consumer protection, etc.). In addition, the concept of public order (ordre public) must vary with time, place and circumstances: HKSAR v Ng Kung Siu & Anor[52];

(2)  The sum of rules which ensure the functioning of society, or the collection of fundamental principles on which society is founded, including a restriction on the right to freedom of speech in order to safeguard the proper functioning of the legislature: HKSAR v Fong Kwok Shan Christine[53]; and

(3)  Measures which are necessary to safeguard the proper functioning of public institutions and the fundamental principles upon which society is founded: HKSAR v So Tsun Fung[54].

65.Applying the above and having regard to the time, place, and circumstances of the present case, this Court is of the view that the “Anti-Extradition Law Amendment Bill Movement” (“Anti-ELAB Movement”) experienced by society in Hong Kong in 2019[55] is another important background factor in addition to the 2018 Amendment and the 2020 NSL:

“… At present, the increasingly notable national security risks in the HKSAR have become a prominent problem. In particular, since the onset of Hong Kong’s “legislative amendment turmoil” in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as ‘Hong Kong independence’, ‘self-determination’ and ‘referendum’, and engaged in activities to undermine national unity and split the country. They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and the Communist Party of China, besiege Central People’s Government offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong. These forces have also wilfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralyzed governance by the government and operation of the legislature. Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs. They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organizations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security. These acts and activities have seriously challenged the bottom line of the ‘One Country, Two Systems’ principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests. Vigorous measures must be taken to prevent, suppress and punish such acts and activities in accordance with the law.”

(Translator’s Note: The English rendering of this quote is an adoption of the unofficial English translation provided by the DOJ on the webpage titled “Annotations of the Hong Kong National Security Law and Sedition Offences in the Crimes Ordinance”)

For the avoidance of doubt, this Court must point out that for the present case, the Court need not and will not make a finding on whether the Alliance or its members played any role in the “Anti-ELAB Movement”, as that does not fall within the scope of the charge. It must however be noted that due to the changes in society within Hong Kong and across the international landscape after 2019, coupled with the implementation of the NSL, conduct that was not previously bound by law, especially prior to the promulgation of the NSL, may now be unlawful.

66.Given that the NSL is intended to operate in tandem with constitutional rights, freedoms, and other applicable statutory norms, and that one of its working principles is “accommodating the differences between Mainland China and the HKSAR, and striving to address the convergence, compatibility, and complementarity between this Law, and the relevant national laws and local laws of the HKSAR”, this Court is of the view that the “fundamental/basic system of the State” established by the Constitution and under NSL 22 clearly falls within the scope of “for the protection of national security” stipulated in Articles 16 and 17 of the HKBOR, and is also encompassed within the concept of “public order (ordre public)”. This Court is not saying that a breach of “public order (ordre public)” is an element of the offence of “incitement”. It is worth noting, however, that NSL 22 and NSL 23 do not seek to prohibit all speech that does not conform to the Constitution, but instead serve to prevent and suppress the unlawful “overthrowing” or “undermining” of the “fundamental/basic system of the State”. We do not believe that the rights and freedom of individuals safeguarded by the BL and the HKBOR would include any acts endangering national security and “public order (ordre public)”.

67.As to whether the words and deeds of the defendants during the charge period were merely the exercise of their right to freedom of expression, or whether they had gone beyond what was permitted by the law or even amounted to contravening the provisions of NSL 22 and NSL 23, that is a matter of evidence and facts, which this Court will address below.

68.Thirdly, applying HKSAR v Yeung Suet Ying Clarisse & Ors, supra, “unlawful means” is not confined to criminal offences but may include acts that are in breach of statutory obligations.

69.Fourthly, as to the relationship between the Constitution and the BL, as well as the scope of application of certain provisions of the Constitution in Hong Kong, they have been addressed above and need not be repeated here. Although the socialist system is not practiced in the HKSAR, this does not mean that the HKSAR has no duty to safeguard the “fundamental/basic system”. As stipulated in NSL 3(2) and 3(3):

“It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.

The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”

70.In light of the above, this Court is of the opinion that an act in breach of the Constitution constitutes “other unlawful means” under NSL 22.

E.  “Fundamental/basic system”

71.Prior to the implementation of the 2018 Amendment and continuing to this day, the seventh natural paragraph of the Preamble to the Constitution contains the following description:

“Both the victory in China’s New Democratic Revolution and the successes in its socialist cause have been achieved by the Chinese people of all ethnic groups under the leadership of the Communist Party of China, … and surmounting many difficulties and obstacles. Our country will long remain in the primary stage of socialism. The fundamental task for our country is to concentrate on achieving socialist modernization along the road of socialism with Chinese characteristics. The Chinese people of all ethnic groups will continue, under the leadership of the Communist Party of China…, to uphold the people’s democratic dictatorship, stay on the socialist road, carry out reform and opening up, steadily improve the socialist institutions…”

（emphasis added）

72.As amended by the 2018 Amendment, the tenth natural paragraph of the Preamble reads as follows:

“The cause of building socialism must rely on workers, peasants and intellectuals and unite all forces that can be united. Through the long process of revolution, development and reform, a … patriotic united front has formed under the leadership of the Communist Party of China, with the participation of other political parties and people’s organizations… This united front will continue to be consolidated and developed. The Chinese People’s Political Consultative Conference is a broadly representative organization of the united front, and has played a significant historical role. In the future, it will play an even more important role in the country’s political and social life and its friendly foreign activities, in socialist modernization and in safeguarding the unity and solidarity of the country. The system of multiparty cooperation and political consultation under the leadership of the Communist Party of China will continue and develop long into the future.”

(emphasis added)

73.The 2018 Amendment inserted the sentence “Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics” after “The socialist system is the fundamental system of the People’s Republic of China” in Article 1(2) of the Constitution.”  The amended (and current) Article 1 reads as follows:

“Article 1 The People’s Republic of China is a socialist state governed by a people’s democratic dictatorship that is led by the working class and based on an alliance of workers and peasants.

The socialist system is the fundamental system of the People’s Republic of China. Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics. It is prohibited for any organization or individual to damage the socialist system.”

74.The Preamble to the Constitution states that “Through the long process of revolution, development and reform, a … patriotic united front has formed under the leadership of the Communist Party of China, with the participation of other political parties and people’s organizations… This united front will continue to be consolidated and developed.”  Furthermore, “The system of multiparty cooperation and political consultation under the leadership of the Communist Party of China will continue and develop long into the future.”

75.In our view, it is clear that the Preamble includes the following key points which are relevant to the offence in the present case:

(1)  The People’s Republic of China is a socialist state as of now and will remain so in the future;

(2)  The leadership status of the CCP will continue; and

(3)  The participation of other political parties is under the leadership of the CCP.

Therefore, this Court disagrees with D4’s submission that the “leadership by the CCP” in the Constitution is devoid of substance and merely symbolic.

76.Furthermore, according to Article 1(2) of the Constitution, it is beyond dispute that the “socialist system” is the fundamental system of the State. Since leadership by the CCP is the “defining feature” of socialism with Chinese characteristics, this “defining feature” is inherently an integral element of the “fundamental system”. If one were to ask: what is the CCP leading? This Court is of the view that based on the context of the entirety of Article 1 and its clear literal meaning, the answer is definitely “socialism with Chinese characteristics” and its system. As to the other political parties, they “participate” in the patriotic united front under the leadership of the CCP. It follows that the leadership status of the CCP as the ruling party is established and entrenched by the existing Constitution, with no possibility for Western-style party alternation. Therefore, under the existing Constitution, “overthrowing” or “undermining” the leadership status of the CCP is tantamount to “overthrowing” or “undermining” the “fundamental/basic system” established by the Constitution to which NSL 22 refers.

77.In their testimonies, D2 and D4 both disagreed that leadership by the CCP forms part of the “fundamental/basic system”. Relying on Article 2[56] of the Constitution, they said the “fundamental/basic system” is one of “sovereignty of the people”. On this point, this Court does not entirely agree with this contention. In any event, for the reasons set out below, we are of the view that that does not undermine the prosecution case.

78.First of all, there could be no doubt that the “basic system” established by the Constitution referred to in NSL 22 echoes the fundamental system established in Article 1 of the Constitution, which is the socialist system under the leadership of the CCP. This is the only fundamental system of the State. As the first provision in the entire Constitution, Article 1 has foundational significance and its status is not to be ignored.

79.Secondly, even on the assumption that the “basic system” mentioned in NSL 22 may also include other matters referred to in the Constitution apart from what is stated in Article 1, this Court is of the view that “sovereignty of the people” is merely an abstract concept rather than a concrete system. We note that the text of Article 2 does not include words such as “system” or “fundamental system”. It is true that Article 2(1) of the Constitution declares that “All power in the People’s Republic of China belongs to the people”, but the concrete means of implementation are stated in Article 2(2), namely, the organs through which the people exercise State power are the people’s congresses at all levels. If, as the defence contends, Article 2 does contain a description of the “fundamental system”, this Court believes that it refers to the exercising of State power by the people through the people’s congresses at all levels as the organs of State power. This view is supported by Article 3[57], which mentions “democratic centralism” and stipulates: “All administrative, supervisory, adjudicatory and procuratorial organs of the state shall be created by the people’s congresses and shall be responsible to them and subject to their oversight.”  Therefore, this Court agrees with the prosecution’s submission that Articles 2 and 3 of the Constitution serve to point out that the system of people’s congresses is the ultimate repository of State power, and that the people exercise State power and participate in State affairs through the system of people’s congresses and various statutory channels.

80.This Court has not overlooked the fact that Article 41 of Chapter II of the Constitution ensures that Chinese citizens “have the right to criticize and make suggestions regarding any state organ or state employee”. Nevertheless, in our opinion, it goes without saying that all the “Fundamental Rights and Obligations of Citizens” enumerated in Chapter II (including: Article 41; Article 51, which requires citizens to “not undermine the interests of the state, society or collectives, or infringe upon the lawful freedoms and rights of other citizens” “when exercising their freedoms and rights”; Article 52, which stipulates that citizens “shall have the obligation to safeguard national unity and the solidarity of all the country’s ethnic groups; Article 53, which even expressly provides that citizens “must abide by the Constitution and the law”, etc.) must be interpreted under the framework of Chapter I General Principles (including Article 1), which is to be treated as the premise.

81.Given that the NPC, being the “highest state organ of power” [58], had in 2018 exercised the power conferred upon it by the people[59], agreed to and passed the constitutional amendments in accordance with statutory procedures[60], this Court must accept the amended version of the Constitution as lawful and valid, and hence the legitimacy of “leadership by the CCP” is also unquestionable. Chinese citizens, regardless of their political beliefs, have an obligation to respect and abide by the Constitution and the law; this is a fundamental principle of the rule of law. Any attempt to change the existing system must be pursued through the means and procedures permitted by the Constitution and the law.

82.During closing submissions, D4 described the CCP, the ruling party, as an unlawful or unconstitutional regime; this Court wholly rejects this assertion. As stated in the Preamble to the Constitution, the rule of the CCP has its unique historical background and a broad popular mandate. At this juncture, this Court must solemnly state that the present case is not about weighing the merits of the Western-style democratic system and the Chinese-style socialist system against each other, nor is it (as D4 suggested) about “shielding and protecting” any political party or regime, let alone involving any political considerations. This Court is of the view that issues such as “democracy” and “dictatorship” are completely irrelevant to the offence in the present case; no one shall be permitted to propagate their political beliefs through the present proceedings. The duty of this Court is to determine, from a jurisprudential perspective and based on the evidence before the Court, whether the conduct of the defendants had gone beyond the limits permitted by the existing law.

83.This Court also disagrees that there is an inherent contradiction between the country’s existing political system and the rule of law. The reason is that Article 5 of the Constitution expressly provides that “The People’s Republic of China shall practice law-based governance… all political parties… must abide by the Constitution and the law… No organization or individual shall have any privilege beyond the Constitution or the law.”  As to the example cited by D4 concerning the Korean leaders who suppressed the “Gwangju Incident” in accordance with Korean laws but were tried and convicted[61], we find that case to be of no assistance as this Court is unfamiliar with the relevant laws in Korea and Korea is not a country that adopts the common law system.

F.  “The body of central power”

F.1  What is the “body of central power”

84.Neither the NSL nor the Constitution provides a definition of the “body of central power”.

85.The prosecution submitted that the State Institutions listed in Chapter III of the Constitution are relevant, and that these constitute the “body of central power” referred to in NSL 22. Although the defendants raised no major dispute over this, this Court does not entirely agree with the prosecution’s submission in this regard. The reason is that in addition to referring to the NPC, the President of the PRC, the State Council (i.e. Central People’s Government[62]), and the Central Military Commission, Chapter III of the Constitution includes local institutions that are clearly not “central”, examples of which are local people’s congresses at all levels, local people’s governments at all levels, autonomous organs of ethnic autonomous areas, etc.

86.On the other hand, we note that the Safeguarding National Security Ordinance[63] has the following provision under Section 3(1) Interpretation:

“Central Authorities means the body of central power under the constitutional order established by the Constitution of the People’s Republic of China, including (but not limited to) the National People’s Congress of the People’s Republic of China and its Standing Committee, the President of the People’s Republic of China, the Central People’s Government of the People’s Republic of China and the Central Military Commission of the People’s Republic of China”

We are not unaware of the fact that the Safeguarding National Security Ordinance did not come into force until 2024 (after the charge period). Nevertheless, the prosecution and the defence did not dispute that the Court may refer to the above definition.

87.Since the Safeguarding National Security Ordinance and the NSL both address the same subject matter of safeguarding national security, coupled with the fact that the legislative purpose and content of the former are closely related to the NSL[64], this Court is of the view that the aforementioned definitions, if not directly applicable to the present case, are at least of certain reference value: see HKSAR v Kwan Ka Hei[65].  Therefore, we determine that “the body of central power” referred to in NSL 22 includes (but is not limited to):

•  the NPC;

•  the Standing Committee of the NPC;

•  the President of the PRC;

•  the Central People’s Government; and

•  the Central Military Commission

F.2  “Leadership by the CCP” and the “body of central power”

88.As stated above, the prosecution insisted that “Prohibited Act (1)” would inevitably lead to “Prohibited Act (2)”. In this regard, this Court begs to differ, owing to the following:

(1)  The words “Communist Party of China” only appear in the Preamble[66] and Article 1[67] of the Constitution;

(2)  This Court agrees that under the Constitution, the CCP is the ruling party of the State, from which it follows that the body of central power must be subject to leadership by the CCP. However, the literal text of the provisions of the Constitution does not specifically set out the relationship between the CCP and the various institutions within the body of central power in terms of their structure and personnel arrangements. Nor has the prosecution produced any expert evidence to explain the connection between the two from a jurisprudential perspective or in reality; and

(3)  If leadership by the CCP ceased to exist, does that mean the “body of central power” would then fail to function normally? Even if that were so, does it necessarily mean that those organs of power have been “overthrown”? This Court is of the opinion that the prosecution’s arguments in this regard are vague and superficial, and they have failed to provide any relevant expert evidence.

In view of the above, this Court is unable to arrive at the inference propounded by the prosecution beyond reasonable doubt solely on the basis of the literal meaning of the provisions in the Constitution. We understand that, generally speaking, constitutional provisions stipulate matters of principle rather than concrete details of execution. This Court does not rule out the possibility that the relationship between the CCP and the various institutions within the “body of central power” may be governed by other laws or administrative directives that are not part of the Constitution. However, the prosecution has failed to provide any expert evidence or other relevant literature in this regard, leaving this Court with no basis to make a determination.

89.Consequently, this Court cannot accept that “Prohibited Act (1)” would inevitably lead to “Prohibited Act (2)”, but can only consider the two acts separately and independently, and make findings on the relevant facts based on all the evidence in the present case.

G.  Corporate criminal liability

90.As a company limited by guarantee incorporated in Hong Kong[68], the Alliance is a body corporate.

91.In HKSAR v Lai Chee-ying & Ors[69], this Court (differently constituted) set forth the legal principles governing corporate criminal liability[70], which we will adopt. Generally speaking, bodies corporate (including companies) can be convicted of statutory offences[71] or common law offences[72], even if the offences require mens rea.  However, bodies corporate cannot be sent to prison even if convicted, so they cannot be indicted for an offence for which the only statutory penalty is imprisonment[73]. The above legal principles are also equally applicable to offences under the NSL. A body corporate can be convicted and penalised for committing offences under the NSL: see NSL 31[74].

92.The finding of guilt of a body corporate is based on the “doctrine of attribution”, a legal mechanism whereby the unlawful intention and conduct of a natural person representing the “directing mind and will” of the company is attributed to the body corporate and thereby rendering it criminally liable. This resolves the challenge that a body corporate, lacking the physical body of a natural person, is unable to commit crimes.

93.Once the facts of the case have been ascertained, it remains a question of law whether a person is acting as the “directing mind and will” of the body corporate or “merely” as a servant or an agent of that body corporate: Tesco Supermarkets Ltd v Nattrass[75]. In Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue[76], Lord Walker of Gestingthorpe NPJ, delivering the majority judgment of the Court of Final Appeal[77], noted that the emphasis of the word “merely” is “markedly different”[78]. His Lordship observed that an employee holding a position of responsibility (for instance, the manager of a large supermarket which is part of a nationwide chain) may have power to bind his corporate employer, but his authority to exercise such power is derived from the corporate employer’s board of directors, whereas the directors alone are in a special position, whose authority is not derived from other natural persons but from the company’s written constitution; that is, its memorandum and articles of association[79]. Lord Walker reviewed a series of case authorities, including El Ajou v Dollar Land Holdings Plc[80] and Meridian Global Funds Management Asia Ltd v Securities Commission[81]. In Meridian, an appeal from New Zealand to the Privy Council, it was held that the chief investment officer of a fund management company was the “directing mind and will” of the company, and hence his knowledge was attributable to the company. Lord Walker remarked that Meridian is now widely regarded as the leading case on the topic of attribution in company law[82].

94.In R v St Regis Paper Company Ltd[83], the English Court of Appeal, citing Meridian, held that the “directing mind and will” of a body corporate would normally be the board of directors, the managing director and other superior officers who carry out the functions of management and speak and act as the company.

IV.  Prosecution Evidence

95.This Court reiterates that the charge period in the present case is between 1^st July 2020 and 8^th September 2021 (both dates inclusive). Amongst the evidence produced by both the prosecution and the defence, the sole relevance of all matters falling outside the charge period is to serve as background to assist the Court in understanding the words, deeds and beliefs of the defendants during the charge period.

96.Prosecution evidence consists of two sets of “Admitted Facts” and the testimony of a witness tendered for cross-examination by D2.

H.  Admitted Facts (Exhibits P494 and P495)

97.The facts admitted by the prosecution and the defence include the following:

(1)  The Alliance was established on 21^st May 1989 and incorporated as a body corporate in Hong Kong on 15^th June the same year. It is the body corporate D1 in this case.

(2)  As of 30^th June 2020, LEE Cheuk-yan (D2), HO Chun-yan (D3), CHOW Hang-tung (D4) and others were directors of the Alliance.

(3)  The Alliance was the registered owner of 10^th floor, Ngai Wong Commercial Building, 11–13 Mong Kok Road, Kowloon since 31^st July 2019. On 15^th September 2020, the Alliance changed its registered office address to this address. Thereafter the registered office of the Alliance was the premises of the June 4^th Museum. The size of the June 4^th Museum was approximately 1,200 square feet.

(4)  The present case was brought before the Court on 10^th September 2021, at which time the Alliance was still an existing body corporate. As of that date, D2, D3 and D4 remained directors of the Alliance. On 20^th October 2021, D3 resigned as a director of the Alliance.

(5)  On 26^th October 2021, the Chief Executive in Council ordered the Registrar of Companies to strike the Alliance off the Companies Register pursuant to section 360C of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).

(6)  Since its establishment, the Alliance had had 200-odd member groups. It had a Standing Committee, holding a total of 32 terms from 1989 to 2021.

(7)  The identities of the members comprising the 1^st to 31^st Standing Committees, including the Chairperson, Vice Chairpersons, Secretary, and committee members, as well as the organizational structure of the Standing Committee, including information on various sections or departments.

(8)  During each of the 32 terms of the Standing Committee of the Alliance spanning from 1989 to 2021, the status of D2, D3, and D4 serving as directors and/or the company secretary of the Alliance as a body corporate, and the positions held and duties discharged by them in the Standing Committee of the Alliance.

(9)  Since the establishment of the Alliance, various activities had been organized in the name of the Alliance, including Victoria Park Chinese New Year flower market stall, flower offering at Ching Ming Festival, the June 4^th long-distance run, the June 4^th vigil, sending Christmas cards, marches, rallies, talks, seminars, thematic exhibitions, film screenings, etc. Street booths at various locations were also set up in the name of the Alliance.

(10)  The HK Alliance Dispatch was published in the name of the Alliance in the form of a periodical, with each issue bearing its own serial number as well as its year and date of publication and was distributed both physically and in digital form through the Alliance’s website.

(11)  On 25^th July, 3^rd August, 4^th August, 6^th August and 9^th August 2021, the police obtained from the Alliance’s website the digital versions of Issues 1 to 121 of The HK Alliance Dispatch (i.e. a total of 121 issues). These issues of The HK Alliance Dispatch were published between August 1989 and April 2019.

(12)  The Alliance published various content in its name through its website, Facebook, Twitter, YouTube, etc.

(13)  The URL of the internet website established in the name of the Alliance is https://hka8964.wordpress.com/ (the Alliance’s website). On 17^th June, 25^th July, and 8^th September 2021, the police captured screenshots of the content displayed on the Alliance’s website.

(14)  The internet webpage with the URL https://64museum.blogspot.com/ is the website known as “June 4^th Museum” (“the June 4^th Museum website”). On 5^th April 2022, the police captured screenshots of the contents publicly displayed on the June 4^th Museum website.

(15)  Facebook is an online social media platform where one can publish various types of content including text and video clips, and/or share material from elsewhere on the internet. It also allows others to leave comments, post responses (including ‘likes’), and/or share content. Facebook users can follow the accounts of others.

(16)  A Facebook account was opened in the name of the Alliance, with the account name “香港支聯會 Hong Kong Alliance” and account handle @hka8964. As of 9^th September 2021, the Alliance had 24,102 followers on Facebook.

(17)  On 9^th September 2021, the police obtained screenshots of the content displayed as the homepage from the Alliance’s Facebook page. Between 27^th August 2021 and 1^st September 2021, the police captured multiple sets of screenshots of the content of posts publicly displayed on the Alliance’s Facebook page. Each set of screenshots displays in order the content of the relevant post, the date and time of publication as shown upon clicking to display the date, and (if any) enlarged images of the pictures or other materials contained therein.

(18)  Twitter is an online social media platform where one can publish various types of content including text and video clips, and/or share material from elsewhere on the internet. It also allows others to leave comments, post responses, and/or share content. Twitter users can follow the accounts of others.

(19)  A Twitter account has been opened in the name of the Alliance since March 2010 with the account name “Hong Kong Alliance 香港支聯會” and the account handle @hka8964. The account stated on Twitter that the Alliance’s date of birth was 1989 (the Alliance’s Twitter account). As of 25^th August 2021, the Alliance’s Twitter account had approximately 44,800 followers.

(20)  Between 28^th December 2020 and 25^th August 2021, the police captured screenshots of the content of posts publicly displayed on the Alliance’s Twitter account.

(21)  YouTube is an online video-sharing social media platform where one can publish various video content. The publication of these video clips can include text descriptions, and the platform also allows others to leave comments, post responses, and/or share content. YouTube users can subscribe to the channels of others.

(22)  A YouTube channel was opened in the name of the Alliance with the account name “Hong Kong Alliance 香港支聯會” (the YouTube channel of the Alliance). As of 9^th September 2021, the Alliance’s YouTube channel had 3,720 subscribers.

(23)  On 9^th September 2021, the police obtained screenshots of the content displayed in a playlist from the Alliance’s YouTube channel page. The playlist shows that a playlist titled “歷年香港六四燭光悼念集會 June 4 Candlelight Vigil Hong Kong” was last updated on 8^th September 2020 and had a view count of 1,039.

(24)  On 15^th April 2021, the police captured from the Alliance’s YouTube channel screenshots of the content displayed on the video pages showing the Alliance’s June 4^th vigils from 1990 to 2020.

(25)  The internet webpage with the URL https://8964museum.com/ is the website known as the June 4 Memory & Human Rights Museum (“the June 4 Memory & Human Rights Museum website”). Between 14^th and 15^th September 2021, the police captured screenshots of the content publicly displayed on various sections of the June 4 Memory & Human Rights Museum website.

(26)  On 9^th September 2021, the police went to the June 4^th Museum to conduct a search. They entered the premises of the June 4^th Museum at approximately 1105 hours, and there was no one inside the premises at the time. Following the search, the police seized various exhibits. When conducting the search of the June 4^th Museum, the police divided the museum into different zones, labelled as Zones A to D, which were further subdivided numerically and marked on a total of 5 sketches not drawn to scale.

(27)  On the day of the search, the police took 46 photographs at the scene of the June 4^th Museum. After the search, the police took 91 photographs of some of the exhibits seized at the scene.

(28)  On 9^th September 2021, the police conducted a search of the premises at Flat A, 21/F, Block 1, Golden Dragon Industrial Centre, Tai Lin Pai Road, Kwai Chung, New Territories (the premises at Golden Dragon Industrial Centre). After entering the premises at Golden Dragon Industrial Centre at approximately 1558 hours, the police discovered and seized various exhibits.

(29)  The police obtained various items of video evidence for the present case, including footage of 82 different occasions. Police officers preserved these video clips accurately and completely as video evidence, and the circumstances captured in these items of video evidence are true.

(30)  Exhibits (including documentary exhibits) referred to in the “Admitted Facts” (P494 and P495) are produced as prosecution exhibits.

(31)  The aforementioned prosecution exhibits had been kept in safe custody from the time they were obtained or seized by the police until they were produced in court, without any unlawful or improper interference.

I.  Selected articles and speeches

98.As certain articles or speeches mentioned in the testimonies of prosecution or defence witnesses are relatively lengthy, the relevant content is excerpted separately in the “Annexes”.

J.  The 1^st prosecution witness: Superintendent CHOW Wing-yee Josephine (“PW1”)

J.1  Cross-examination by D2 

99.PW1 joined the police in 1998 and is currently attached to the Operations Wing of the Hong Kong Police Force. She was tendered for cross-examination by D2.

100.Between April and June 2020, PW1 was responsible for handling the notice of objection regarding the June 4^th Meeting. On 1^st June the same year, she issued a “Notice of Prohibition of Public Meeting” to the Alliance, which set out four considerations in writing: (1) regulations prohibiting group gatherings; (2) the highly infectious coronavirus disease; (3) experts’ advice that members of the public should reduce social contact in view of the nature of the virus; and (4) that even if relevant conditions were imposed, they would not be of assistance in the interests of public order, public safety, and the protection of the rights and freedoms of others. PW1 agreed that the aforementioned reasons were unrelated to the Five Action Agendas of the Alliance, but disagreed that they were unrelated to national security, as health and safety fall within the broader domain of national security.

101.In her consideration in 2020, PW1 had referred to the records of approval for the June 4^th meetings in the previous two to three years, and had also considered the background of the Alliance, though not in depth. At the time, she was unaware that the provision on “leadership by the CCP” had been introduced in the 2018 Amendment. She had paid no attention to what the full name of the Alliance was, nor was she aware of its founding background or the existence of the Five Action Agendas.

102.PW1 was aware that starting from 1995, the June 4^th meetings of the Alliance had consistently been issued Notices of No Objection by the police. Between 1998 and 2019, the police had assisted in maintaining order at the June 4^th meetings. She agreed that past June 4^th meetings were peaceful and rational, and that the Alliance had never been prosecuted as a result of the assemblies.

V.  “Co-conspirators’ rule”

103.Prior to addressing the no-case submissions of D2 and D4, this Court first heard the submissions of the parties on the co-conspirators’ rule on 9^th March 2026.

K.  Submissions

K.1  Prosecution’s submission

104.For the present case, the prosecution sought to produce part of the content of nine video clips, namely TB4/SN60[84], SN61[85], SN62[86], SN63[87], SN67[88], SN68[89], SN69[90], SN71[91] and SN72[92] in Trial Bundle TB4 under the co-conspirators’ rule. What is recorded in the above video clips are events that took place after the NSL had come into effect. For details, see Annex A of Prosecution’s Written Submission on the Application of the Co-conspirators’ Rule in the Present Case[93].

105.It was the prosecution’s submission that the aforementioned statements and actions of the individual defendants (D2, D3 and D4) could be admitted as evidence against the co-defendants who were not present, pursuant to the co-conspirators’ rule.

106.However, the prosecution made it clear that they did not rely on the co-conspirators’ rule against the Alliance as a body corporate, but merely asked the Court to consider whether D2, D3, and D4 had engaged in a joint enterprise with the Alliance in the commission of the offence. The prosecution also relied on the “doctrine of attribution”, contending that since D2, D3, and D4 were directors of the Alliance, their intentions and acts should be attributed to the latter, thereby rendering the latter criminally liable for the relevant offence committed by D2, D3, and D4.

K.2  D2’s submission

107.D2 submitted that as the core issue of this case lay in the interpretation of the Constitution and the Action Agenda of “ending one-party dictatorship”, the following actions and statements were not admissible under the “co-conspirators’ rule”:

(1)  Actions and statements made in an individual capacity not representing the Alliance;

(2)  Actions and statements unrelated to the main issue of this case, i.e., the “end one-party dictatorship” Agenda; and

(3)  Criticisms exclusively on the acts of the Communist Party without touching upon the “end one-party dictatorship” Agenda.

108.Therefore, it was D2’s view that the speeches in the following footage had nothing to do with the issues in this case:

(1)  In TB4/SN61 and SN71, D3 and D4 were purely commenting on the NSL;

(2)  In TB4/SN62 and SN71, D3 and D4 were merely reiterating that the Alliance’s objects were to fight for democracy, human rights etc;

(3)  In TB4/SN68, D4 only briefly said that the Alliance would not give up the Agenda of “ending one-party dictatorship” because of the NSL. It only showed that the Alliance had been holding the same stance throughout the years.

K.3  D4’s submission

109.D4 submitted that the “joint enterprise” alleged by the prosecution was “utterly boundless and could not form any basis for invoking the ‘co-conspirators’ rule’ ”. If, however, the scope of the “joint enterprise” could be narrowed down to “using the Alliance as a platform to promote ending one-party dictatorship”, she had no objection to the application of the “co-conspirators’ rule” under specific circumstances, namely when D2 and D3 were engaging in activities and speaking as representatives of the Alliance. If, however, they were merely acting in their individual capacity or as the representatives of another organization, even if the actions and statements made under those circumstances were not contrary to, and even broadly matched, the stance of the Alliance, this would not be evidence admissible against her under the “co-conspirators’ rule”.

110.As such, D4 objected to the admission of TB4/SN60-62 under the “co-conspirators’ rule” since D2 and D3 were not engaging in activities or speaking in the capacity of representatives of the Alliance there. She made it clear that she raised her objection as a matter of principle; with regard to the specific content of TB4/SN60, SN61 and SN62 that the prosecution sought to rely on, the ruling on their admissibility in fact had no bearing whatsoever on her case.

L.  The ruling

111.After considering the submissions by parties, the Court ruled that TB4/SN60, SN62, SN63, SN67, SN68, SN71 and SN72 were admissible under the “co-conspirators’ rule” but TB4/SN61 and SN69 were not. We said that we would give our reasons in writing, and we now do so.

L.1  Relevant legal principles

112.The following legal principles are not in dispute:

(1)  The acts and declarations of the alleged conspirators (“other conspirators”) in furtherance of a conspiracy may be admitted as evidence and adduced to prove the extent and degree of participation of the defendant who was absent and the nature and extent of the plan: Vivien Fan v HKSAR[94]and see Phipson on Evidence[95].

(2)  Such principle is applicable to conspiracy charges as well as common enterprise offences: HKSAR v Yip Kim Po[96].  If the defendant joined in after the plan had come into existence, the acts and declarations of other conspirators prior to the defendant’s joining are still admissible against him. While such evidence can be proof of the nature and extent of the plan, it is not evidence of the role of the defendant and the degree of his participation: HKSAR v Pang Tat-sing[97] R v Au Shui Yuen Alick[98].

(3)  To invoke the “co-conspirators’ rule”, two criteria had to be met:

(a)  there must be reasonable evidence linking the defendant to the conspiracy/plan and such evidence must be independent – in the sense of it being evidence other than the evidence which would be admissible only pursuant to the co-conspirators’ rule itself; and

(b)  such acts or declarations must have been made by other conspirators in furtherance of the conspiracy/plan.

(“admission criterion (a)” and “admission criterion (b)”); and

(4)  Moreover, as the NSL has no retrospective effect[99], the acts and declarations of other conspirators before its promulgation[100] are not admissible under the co-conspirators’ rule. That said, such acts and declarations are admissible for non-hearsay purpose: HKSAR v Ng Gordon Ching Hang & Ors[101] applying R v Ahern[102].

L.2  Considerations – admission criterion (a)

113.It is in the Admitted Facts that D2, D3 and D4 were all directors of the Alliance during the charge period; D2 was even the Chairperson while D3 and D4 were Vice Chairpersons. The prosecution evidence is that after its establishment in 1989, the Alliance had always held and publicised the “Five Action Agendas”, one of which was “end one-party dictatorship”, with “one-party” referring to the CCP. Prosecution evidence shows that at the time in question, D2, D3 and D4 jointly used the Alliance as a platform to promote the “end one-party dictatorship” Action Agenda. In fact, the defence had no dispute about this.

114.Based on the evidence at this stage, the Court opined that not only could the “end one-party dictatorship” Action Agenda of the Alliance be reasonably regarded as a violation of Article 1 of the Constitution, it also included any action that could lead to the end of one-party dictatorship, including actions of overthrowing the leadership of CCP, even though such actions might not necessarily involve the use of violence.

115.After considering the submissions of all parties carefully, the Court did not agree with D4’s submission that the conspiracy alleged by the prosecution was “utterly boundless and could not form any basis for using the ‘co-conspirators’ rule’ ” for the following reasons:

(1)  The Court had already ruled that the indictment contains sufficient particulars of the offence and refused to accept D4’s submission that the statement of offence in the indictment was not an offence known to law[103]. We shall not repeat the details here.

(2)  The scope of the charge in the present case is broad, but as stated above, unless Article 1 of the Constitution is amended in accordance with the procedure stipulated in the Constitution, any means with the intent to end the ruling status of the CCP is in breach of the Constitution; and

(3)  The Court agrees with the prosecution’s submission that all “acts… with a view to subverting the State power” (including overthrowing or undermining the CCP leadership) are not only in breach of the Constitution, but also “unlawful”. The Court understands that “ending” does not necessarily mean “overthrowing” and “undermining”. Whether the Alliance’s Action Agenda of “ending one-party dictatorship” carried the implication of overthrowing or undermining the rule and leadership of CCP depended upon the consideration and assessment of the evidence.

116.We note that in answering D4’s question in writing[104], the prosecution said the following regarding their case[105]:

“It is the prosecution’s position to rely on all four limbs of ‘organize, plan, commit or participate in’. In short, after the NSL took effect, D1, (the Alliance, as a body corporate), D2 to D4 (as an individual and/or the directors and committee members of a body corporate) continued to maintain D1, the Alliance, as an organization of a body corporate. By holding various public activities, publishing or continuing to publish various publications or online materials, running a premises named June 4^th Museum, D2 to D4 giving media interviews and public speeches pertinent to the Alliance, they persisted in running the Alliance and advocated the ‘end one-party dictatorship’ proposition. By inciting others to join or agree with the Alliance, they further promoted the Alliance and its proposition, and sought support and funding for the activities of the Alliance.” (emphasis added)

That being so, the prosecution did not limit their allegations to the acts and statements of D2, D3 and D4 as the directors of the Alliance, but also included those made in their individual capacity. However, the Court agreed with D2’s submission that when such acts and statements were merely criticisms on the conduct of the CCP that had nothing to do with the “end one-party dictatorship” Agenda of the Alliance, the prosecution could not rely on the “co-conspirators’ rule” as they did not form part of the prosecution case.

117.On the other hand, D2 and D4 submitted that the “co-conspirators’ rule” was relevant only when the conspirator was acting and speaking in the capacity of a representative of the Alliance. We opined that it was an important and powerful factor for consideration but not essential. In other words, even if a conspirator was speaking in an individual capacity, it did not necessarily mean that the “co-conspirators’ rule” does not apply. The question was whether the purpose of the actions and statements of that particular conspirator was to support and advocate the “end one-party dictatorship” Agenda of the Alliance and to “facilitate” the “incitement” stated in the charge. This was about the specific content of such actions and statements, as well as the conspirator’s intention and purpose then. The Court considered that if the purpose behind the acts and statements of the conspirator was to encourage other people to engage in activities of overthrowing the rule of the CCP, such acts and statements could be regarded as evidence supporting the charge of this case even if the activities might not involve the use of violence.

118.Accordingly, the Court ruled at that stage that there was reasonable and independent evidence linking all the defendants to the “incitement” alleged in the charge.

L.3  Considerations – admission criterion (b)

119.The Court had viewed the nine footage set out in Annex A of the prosecution’s written submission carefully. All of them were filmed after the promulgation of the NSL.

120.Insofar as TB4/SN60, SN62, SN63, SN67, SN68, SN71 and SN72 were concerned, we had the following observations:

(1)  SN60: When D2 testified online before the U.S. House of Representatives Committee On Foreign Affairs, he introduced himself as the chair of the Alliance. During his testimony, he said that notwithstanding the passing of the NSL, they would adhere to their proposition of “ending one-party rule” and would not retreat, and that they would continue to organize activities that had been organized previously.

(2)  SN62: D3 said in an interview that they would continue to do what they considered to be meaningful and persist in demanding “end one-party dictatorship”, and said if the law did not allow it, he would rather bear the legal consequences. He said they would strive for it and hoped that it would persist in the long run, they would continue to stay united with the Hong Kong people who had the courage to stay behind, and they would persist in what they did, however difficult the situation was. He also said that they would carry on with the tradition of the June 4^th candlelight vigils and they would disobey orders if there was no other way.

(3)  SN63: When being asked questions on the NSL during an interview, D2 stated they would uphold the “Five Action Agendas” as not backing down and not retreating were “very important”. He also said that by not retreating, this would protecting the entire movement as other people would not retreat either when they saw that. People would stay shoulder to shoulder and hand in hand. If one side retreated, it would affect the entire movement, so he opined that people definitely had to continue with what they had been doing previously.

(4)  SN67: At the press conference held at the June 4^th Museum in commemoration of SZETO Wah, D3 said he could never give up, however difficult the situation was, as perseverance brought hope, and when there was hope, there was a chance of success. In short, perseverance brought victory. He further said that the Alliance would continue to keep going. D2 said on the same occasion that the CCP was aware of their Five Agendas. He said they were mentally prepared and they would carry on with their work fearlessly.

(5)  SN68: During a press interview held in the June 4^th Museum, D4 talked about upholding the “end one-party dictatorship” Agenda. She indicated that if an organization abandoned its most essential Agenda, its existence was meaningless.

(6)  SN71: During a joint activity of the Alliance and the League of Social Democrats (“LSD”), D4 mentioned that the authorities invoked national security as justification to repress dissidents; she said China and Hong Kong “shared a common fate”, that the two places had to put up resistance together, and only then was it possible to bring down the dictatorship of the CCP. During that activity, D2 and the participants chanted the Five Agendas, which included “ending one-party dictatorship”.

(7)  SN72: When being interviewed by Cable TV in the June 4^th Museum, D2 said they would continue to uphold the Five Action Agendas and would not make any adjustment on account of the red line of the NSL. He also said their perseverance was meant to bring a hope and a change, and they would continue to fight for this goal until the last breath.

Insofar as the above speeches of D2, D3 and D4 were concerned, the Court was of the view that a reasonable understanding was that not only were they persisting in the usual stance of the Alliance, they were also promoting the Action Agendas that included “ending one-party dictatorship” and encouraging other people to turn the Agendas into action.

121.Conversely, the Court did not think that TB4/SN61 and SN69 were related to the charge:

(1)  SN61 was about the speech of D3 during the “July 1 march” in 2020. It was not the Alliance’s activity and D3 was not speaking on behalf of the Alliance either. What he said was only directed at the NSL that had just been promulgated; it had not touched upon the Action Agenda of the Alliance.

(2)  SN69 was an interview given by D2 on 2^nd March 2021 outside West Kowloon Law Courts in his individual capacity. When being asked by a reporter his views on “patriots administering Hong Kong”, he questioned who had the authority to define who was a patriot and who was not. He also questioned whether the authorities were aiming at suppressing opposing voices. He made no mention of the “ending one-party dictatorship” Action Agenda during the interview.

M.  Conclusion

122.For the above reasons, the Court ruled that TB4/SN60, SN62, SN63, SN67, SN68, SN71 and SN72 were admissible under the “co-conspirators’ rule” while TB4/SN61 and SN69 were not. That being so, under the rule, the prosecution could only rely on the relevant entries in the first seven footage but not the last two. However, the prosecution could still rely on the content of TB4/SN61 and TB4/SN69 as evidence against the person who made such statements.

123.This ruling only concerned the admissibility of the above evidence. The weight attached to such evidence would not be decided until the Court had heard all the evidence and closing submissions.

VI.  Halfway submissions

124.At the conclusion of the prosecution case, D2 and D4 made a motion of “no case to answer”. In short, they were saying that the prosecution had failed to establish a prima facie case and asked the court to rule that the two defendants had no case to answer.

125.The Alliance did not make a similar application but it would benefit from any ruling favourable to D2 and/or D4 since the issues raised by them would have a bearing on the prosecution case against the Alliance.

126.After hearing the no case submissions from the prosecution and the defence, we ruled on 13^th March 2026 that there was a prima facie case for all the defendants; we said that we would give our full reasons at the end of the trial. And we now do so.

N.  Legal principles on “no case to answer”

127.It is not disputed that the landmark authority on the submission of no case to answer is R v Galbraith[106]. On how a trial judge should approach a case based on inferences when faced with a motion of “no case to answer”, it was held in Re Secretary for Justice’s Reference (Nos 1-3/2021)[107] that the approach adopted by the CA in dealing with an application for discharge pursuant to s22 of the Complex Commercial Crimes Ordinance (Cap 394) in Attorney General v Li Fook Shiu Ronald[108] was applicable. In relation to primary facts and also as to inferences to be drawn from such facts, the judge’s focus is not on whether these are accepted by him/her at that stage, but what a jury “could, may or might” properly conclude regarding such evidence in the future. Both primary facts and the inferences therefrom are “matters generally speaking within the province of the jury”, in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions have been given, the test is not what the judge thinks the jury – and still less the judge himself/herself – “must” conclude at the moment, but what a jury “could, may or might” properly conclude in the future. To summarise, when the prosecution case is premised on inferences from primary facts, the judge may ask himself when dealing with halfway submissions[109]:

(1)  Is there some evidence that the crime has been committed?

If not, the judge will rule no case or discharge the count in question. If there is;

(2)  Is the evidence of primary facts of a quality permitting a jury to accept it?

If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3)  Could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inference as have to be drawn if all the elements of the prosecution case are to be established?

If the answer is yes, he will rule there is a case to answer.

128.The CA further stated in Re Secretary for Justice’s Reference (Nos 1-3/2021)[110] that the prosecution is not required to show that the jury could not reasonably reach any alternative inference contended for. The question is whether it is properly open to the jury to reach the inference contended for by the prosecution. If there may be another inference consistent with innocence, the case can still go to the jury[111].

129.For avoidance of doubt, we make it clear here that when considering the no case submissions, the Court regarded the criteria related to the “co-conspirators’ rule” and the test related to “no case to answer” to be different, and regarded these as separate issues. The ruling on the former did not automatically lead to a case to answer for the defendants. The Court would examine the evidence afresh and then determine if the prosecution has called sufficient evidence to justify a prima facie case.

130.Lastly, as D2 rightly pointed out, the charge of this case does not have retrospective effect; the Court can only reach a verdict based on the facts of the charge period: see NSL 39. The only relevance of the words and deeds of the defendants before the charge period is that they provide a backdrop for the Court to understand the speeches, the acts and the ideology of the defendants during the charge period.

O.  Submissions

O.1  Prosecution’s submission

131.As said above, it was not disputed that the defendants had upheld and publicised the “end one-party dictatorship” Action Agenda before the promulgation of the NSL and had continued to do so thereafter.

132.The prosecution submitted that taking the speeches of all the defendants on CCP as a whole, the Court could find that in the context of this case the CCP was definitely the target referred to in “ending one-party dictatorship”, and the natural and reasonable consequence was a demand to end the leadership of the CCP. There was no lawful means to achieve this under the Constitution, so any means to achieve such purpose was naturally “unlawful”. The prosecution contended that the evidence clearly showed that the defendants had never advocated constitutional amendments. Over the years, “ending one-party dictatorship” was plainly the ultimate political goal of the defendants. They advocated and promoted that there was a need to put an “end” to the existing system led by the CCP, boosting the effect of their incitement with negative content targeting the State and negated the legality of the leadership status of the CCP. Notwithstanding the implementation of the NSL, with “ending one-party dictatorship” as their goal, the defendants deliberately continued to promote this goal and encouraged other people to put it into action. While they did not suggest any specific method, the natural and reasonable consequence of the acts constituted the “incitement” alleged.

O.2  D2’s submission

133.The following are the main points of D2’s submission:

(1)  The prosecution’s proposition did not have any supporting evidence from experts on Chinese law or politics;

(2)  The “fundamental system” established in Article 1 of the Constitution is the socialist system “governed by a people’s democratic dictatorship”. Even if the CCP was not the ruling party anymore, changing the leader would not bring about any change to the system;

(3)  The “one-party dictatorship” of the CCP was not tantamount to “the leadership of the CCP”, and the Constitution set out explicitly “the system of multiparty cooperation and political consultation” under the leadership of the CCP[112];

(4)  Since the leadership status of the CCP derived legitimately from the Constitution, it could naturally be changed by lawful means in accordance with the Constitution; and

(5)  The “end one-party dictatorship” Action Agenda of the Alliance was always about fighting for democracy and opposing “dictatorship”, and no “unlawful means” was ever involved.

134.To summarise, D2 submitted that the prosecution had misinterpreted the “ending one-party dictatorship” Agenda and the articles of the Constitution. “End one-party dictatorship” was not tantamount to “overthrowing the leadership of CCP” and “overthrowing the authorities” (actus reus). Nor was there any evidential basis showing that it was the understanding (mens rea) of D2. The Five Action Agendas of the Alliance corresponded to each other with a view to demanding a reform of governance, introducing more democratic elements and ruling without dictatorship. Such an aspiration could be achieved by peaceful and lawful means without involving any subversion of State power. The prosecution’s allegations against D2 had no evidential basis. Furthermore, D2 submitted that the prosecution’s premise that there was “no lawful way to achieve ‘ending one-party dictatorship’” was wrong because the Constitution provided a lawful way to change the fundamental/basic system of the Central Government and the body of central power that did not involve necessarily “unlawful means”. Apart from constitutional amendment, democratisation could be achieved through self-reform of the Communist Party. Moreover, the object of the Alliance’s advocacy of “ending one-party dictatorship” was the reforming of the country, which was a fundamental right protected by the express provisions in the NSL and should not be prohibited or constitute a criminal act under the NSL. The prosecution’s interpretation of the elements of the charge must be compatible with the protection to the freedom of speech and expression provided by the NSL, BL, and the HKBOR. As this case involved freedom of speech and association as well as legal provisions on basic rights, a liberal construction should be adopted.

O.3  D4’s submission

135.It was D4’s submission that “ending one-party dictatorship” was merely a political proposition and there was no suggestion to turn it into action. She criticised that the basis of the charge was weak and that merely because the defendants had put forward a political proposition, the prosecution were alleging they were inciting others to do an act that no one knew the nature of, yet could “miraculously” put the proposition into action. She argued that supporters of this proposition, if any, might not necessarily take any action, and even if they did, they might just do some acts that might help “end one-party dictatorship”. This, however, did not mean that they accepted the aim of “ending one-party dictatorship” should justify any means.

136.D4 contended that no properly directed jury could have, on the evidence available, come to the conclusion that “ending one-party dictatorship” was tantamount to “ending the leadership of the Communist Party”. Even if the Court accepted that some of the words and deeds of the defendants could incite certain acts that could “end one-party dictatorship”, this could not possibly be the “natural and reasonable consequence” of such words and deeds. She emphasised that “ending one-party dictatorship”, even if it became reality, would not necessarily lead to the end of the leadership of the Communist Party; it would merely make this an institutional choice, thereby making it possible for this to happen peacefully. Moreover, she submitted that the prosecution evidence failed to show that the defendants had intended that the persons incited would turn “end one-party dictatorship” into action, thus subverting the State power; and that the required mens rea for the “incitement offence” was not established.

137.Other submissions of D4 were either similar to or overlapped with D2’s; for example: (1) Various fundamental human rights protected by the BL and HKBOR were involved in this case; she emphasised that the main issue in question lay in the legal definition of the elements of the offence and whether they were proven on the facts; (2) Unconstitutional or unlawful means were not necessarily required to “end one-party dictatorship”; constitutional amendments could achieve this, too; and (3) “Ending” CCP leadership was not necessarily tantamount to “overthrowing or undermining” the “fundamental/basic system” or “the body of central power”. Reaching these two conclusions must involve the interpretation of the Constitution, which included the connotation of the fundamental/basic system of the Constitution and the design of the body of the central power, as well as the connection of the above two items with the CCP leadership. The prosecution could not prove all this without any expert evidence on Chinese law. She further claimed that the current political reality of China was “very likely to be unconstitutional”.

P.  Considerations

138.As stated, the Court in the end rejected certain legal points raised by D4 in her halfway submissions; they included that the Constitution did not have direct legal effect in Hong Kong, and that the Constitution was a “foreign law” such that expert evidence was needed and oral submissions by counsel was not sufficient. The Court has already given its reasons for rejecting the same and shall not repeat them here.

139.D4 made the criticism that there was nothing in the charge setting out what specific actions the incitees were going to take to achieve “ending one-party dictatorship”. The Court has earlier ruled[113] that these are not essential requirements for the offence. We shall not repeat our reasons here.

140.As for D4’s submission that it was not necessarily the case that someone would take any action because of the encouragement of the Alliance, and that even someone did, such action might not be helpful to bring about the consequence of “ending one-party dictatorship”. The Court did not think this contention helped D4. As stated, even if the incitee does not intend to or is not prepared to commit the crime, or no crime is ever committed eventually, the inciter may still be convicted of the offence of “incitement”.

141.Parties made written and oral submissions on NSL 22 and the Constitution during halfway submissions. After careful consideration, we ruled that:

(1)  The constitutional order of the HKSAR is defined by the Constitution and the BL. Generally speaking, unless otherwise specified in the BL, the Constitution as a whole is applicable in Hong Kong;

(2)  It is plain and obvious from the wordings of the relevant provisions of the Constitution that the CCP is the ruling party of the State while other political parties participate under the leadership of the CCP. The leadership status of the CCP is clearly established by the Constitution with no possibility for Western-style party alternation; and

(3)  The leadership of the CCP forms the main part of the “basic system” referred to in NSL 22. Overthrowing or undermining the leadership of the CCP therefore is tantamount to overthrowing or undermining the “fundamental system” established by the Constitution.

The Court has given full reasons for the above ruling and they will not be repeated here.

142.However, the prosecution only disclosed for the first time during halfway submissions in an exchange with the bench that there were in fact two different bases for their case:

(1)  According to the Preamble and Article 1 of the Constitution, the leadership status of the CCP could not be lawfully amended; as the highest state organ of power which has the power to propose constitutional amendments under Articles 62 and 64 of the Constitution, the NPC does not have the power to make such amendment either. Therefore, there exists no lawful way to end the leadership of the CCP. (“basis 1”)

(2)  Even if Article 1 of the Constitution could be lawfully amended, the evidence showed that the “end one-party dictatorship” Action Agenda advocated jointly by the defendants was by no means an advocacy for constitutional amendments; it was an incitement with the intent to overthrow or undermine the leadership of the CCP by unlawful (including unconstitutional) means. (“basis 2”)

The prosecution never explicitly mentioned the above two alternative bases for prosecution until then.

143.On basis 1 the prosecution was faced with the following difficulties. First of all, the Constitution expressly provides that the NPC is the highest state organ of power[114] that has the function[115] to amend the Constitution. As a matter of fact, the Constitution went through many amendments. Hence, it seems to the Court that there is no provision in the Constitution supporting the prosecution’s argument. Second, the prosecution’s submission was of great importance and had far-reaching implication, thus it required sufficient grounds. Without any analysis and reasoning, what they put forward was merely a statement of their position. Third, the Court is not conversant with the approach of legal interpretation in the civil law system, nor was there any expert evidence on Chinese Constitution or literature on this topic to assist the Court. The Court has yet to fully understand the prosecution’s contention and would not make a ruling lightly. After careful consideration, the Court has decided to consider only basis 2 as the prosecution case. Basis 1 would not be considered.

144.On the issue of human rights, the CFA held in HKSAR v Lai Chee-ying that the NSL is compatible with the BL. Despite that being so, the Court accepts that when construing the provisions of the NSL, the fundamental rights (including such rights as freedom of speech, of association and of assembly) of the defendants accorded by the BL and HKBOR are appropriate and necessary factors that must be given weight to. As the CFA has stated:

“42. We have decided that there is no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Bill of Rights. However, that is not at all to say that human rights and freedoms and rule of law values are inapplicable. On the contrary, NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL. They provide the context in which NSL 42(2) must be construed and applied. As far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values. Save insofar as NSL 42(2) constitutes a specific exception thereto, that corpus of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail is intended to have continued effect in NSL cases. As it was put by this Court in a comparable situation, the specific exception is intended to operate in tandem with constitutional rights and freedoms and other applicable statutory norms as part of a coherent whole.”

145.When applying such principles to this case, the Court was of the view that the main issue of this case was: Was the purpose of the “ending one-party dictatorship” Action Agenda of the Alliance and its various activities (such as holding assemblies, vigils, marches and giving press interviews) purely for the promotion of constitutional amendment? (Or was that a possibility?)  If the prosecution could prove otherwise, based on the Court’s understanding of the Constitution and NSL 22 stated above, the Action Agenda would then involve the use of “other unlawful means”, even though “the use of force” or “a threat to use force” might not necessarily be involved in the latter.

146.The Court did not overlook the submissions from the defence that the Five Action Agendas of the Alliance corresponded to each other and were intertwined such that they had to be considered as a whole rather than separately. Nor did the Court ignore the claim of the defence that the ultimate goal of the defendants was to “construct a democratic China”, which was proper and lawful. However, the Court did not think such claims were useful to the defence. This is because assuming that the remaining four Action Agendas of the Alliance are not in breach of any laws, it does not necessarily mean “ending one-party dictatorship” is lawful. To give an example, “helping people in poverty” can be a proper objective and motive, but it does not mean the Court can accept “robbing the rich to help the poor” is a lawful means to achieve this. Likewise, assuming that even if it was the defendants’ objective and motive to construct a “democratic China” which they had in mind, the Court still needs to examine the legality of the means by which they intended to achieve it. It is our view that if the prosecution could prove that the “ending one-party dictatorship” Action Agenda the defendants advocated did involve unlawful means, however proper their ultimate goal was, this could not constitute a lawful defence.

Q.  The ruling

147.After considering the evidence of the prosecution and submissions of all parties, it was the view of the Court that a properly directed and reasonable jury “could, may or might” draw beyond reasonable doubt the following inferences:

(1)  The Alliance’s Action Agenda of “ending one-party dictatorship” was directed at the CCP, with the aim of ending its ruling status;

(2)  Through the Alliance, the defendants had for a long time and continuously organized various activities and given public speeches to advocate the above Action Agenda. This remained so even after the promulgation of the NSL;

(3)  The defendants were not pushing for constitutional amendments through mechanisms that were in compliance with the Constitution, but were negating the legality of the CCP’s power to rule;

(4)  The defendants expected that there would be people accepting their Action Agendas and their negative views on the CCP, and turning the “end one-party dictatorship” into action; and

(5)  The defendants envisaged and believed that not only would some of the people they incited adopt unlawful means, they would also have the relevant mens rea.

Accordingly, the Court ruled that there was a case to answer for all the defendants.

VII.  Defence case and evidence

148.D2 and D4 elected to give evidence (DW1 and DW2). D4 called three defence witnesses (DW3 to DW5).

R.  The 1^st defence witness: Mr LEE Cheuk-yan (D2)

R.1  Examination-in-chief

149.D2 attended HKU in 1975 to study civil engineering. Deeply impressed by the ideological trend of “knowing China and caring for society” in the university at that time, D2 began to understand the history and politics of China through different activities. He identified with the ideas and demands of WEI Jingsheng and the LI Yizhe Group on China’s future and was utterly astounded. D2 said what China going through then was a devastating era, which was hugely different from the present time; he felt the need to take up responsibility and to care for his country. On the other hand, D2’s involvement in grassroots activism in Hong Kong left him shocked. He felt it was his duty to commit to supporting the most underprivileged people in society. After his graduation in 1978, he began to engage himself in labour movement and work that contributed to democracy in China.

150.Concerning his labour movement work, D2 started to work in Kwun Tong Industrial Health Centre right after his university graduation. In 1980, he worked in Hong Kong Christian Industrial Committee (“HKCIC”) and started trade unions movement between 1983 and 1985. D2 served as the General Secretary of the Hong Kong Confederation of Trade Unions (“HKCTU”) after its establishment in 1990 and remained so until he was imprisoned on 16^th April 2021 in relation to another case. In 2011, D2 founded a political party called Labour Party. He served there until its disbandment in 2021.

151.D2 started his work on democracy in China in the 80’s when he started to participate in movements of human rights in China and the release of dissidents. In 1989, the 32-year-old D2 was working as the General Secretary of HKCIC. The slogan of the democratic movement in China at that time was “oppose official profiteering, fight for democracy”. After the death of HU Yaobong on 16^th April, Beijing students gathered in Tiananmen Square. Among the first to support was the Hong Kong Federation of Students, which was followed by the pro-democracy camp in Hong Kong. Apart from participating in marches and sit-ins, he also volunteered to act as the head marshal in the protests.

152.The supporting actions at that time included two massive marches and a massive assembly. After the first massive march, the fund-raising Concert For Democracy in China was held on 22^nd May 1989 in Happy Valley Racecourse, D2 was the head marshal there. That night, SZETO Wah announced that the Alliance would soon be established. Formal establishment took place in early June that year. Either pro-democracy or pro-China, organizations that agreed with the role played by the Alliance, its positioning and its Agendas were welcomed to join. D2 was a member of the 1^st Standing Committee of the Alliance.

153.On 30^th May 1989, a team of four representing the Alliance brought one million yuan donation and travelled to Beijing to support the student movement; D2 was one of them. When they visited different organizations gathered in Tiananmen Square that night, they came to understand that the consensus of the students was to remain in the square, to fight for democratic demands and to have the “April 26 Editorial” that defined the students’ movement as a riot retracted. On the evening on 3^rd June, D2 retreated to a hotel. A chartered flight was then arranged to bring supporters, students and reporters back to Hong Kong on 5^th June. D2 was detained by the public security officers and was allowed to go back to Hong Kong on 8^th June. Most of the donations D2 brought to Beijing and the funds received by the Hong Kong students’ associations dealing with resources in the square were confiscated; the total amount was more than two million dollars.

154.This incident was like a rebaptism to D2. Having been rescued, D2 found that he had a responsibility to tell the world what he had seen and develop his work on patriotic democratic movement, so that democratisation in China and Hong Kong could be achieved.

155.The Alliance’s full name was “Hong Kong Alliance in Support of Patriotic Democratic Movements in China”. Its positioning was: (1) Support: to support movements initiated by organizations or pro-democracy activists in the Mainland. The Alliance would not tell these organizations or people what kind of movement they should initiate as they would take the lead while the Alliance’s role was to support them; (2) A patriotic democratic movement: a continuation of the value of the 1989 democratic movement that was about leading China towards democracy and freedom; (3) An organization of Hong Kong citizens.

156.The Alliance had three operational principles: (1) To uphold the Five Action Agendas that remained unchanged ever since they were passed by the first Standing Committee. It was the principle that motivated the work of the Alliance over the years; (2) To maintain financial independence as much as possible and to achieve a fiscal balance: it relied on donations from individuals instead of fundings from groups, organizations or governments; it minimised the number of paid staff and relied more on volunteers; (3) To unite organizations that shared the same values for the promotion of the movement; such organizations included pro-China organizations, overseas support groups and organizations of pro-democracy activists in exile.

157.For more than 30 years, the activities carried out by the Alliance were always peaceful, non-violent and lawful. In 1995, a Letter of No Objection from the police was required due to the Public Order Ordinance. Before 2020, the June 4 assemblies and marches of the Alliance were lawful activities and a Letter of No Objection was always granted. D2 was prosecuted for taking part in the assembly on 4^th June 2020 when the police had issued a Letter of Objection. D2 thought it was more about his personal action than the assembly itself.

158.The Alliance’s Five Action Agendas of “release pro-democracy activists, reverse verdict on 1989 pro-democracy movement, investigate liability for the massacre, end one-party dictatorship and construct a democratic China” had always remained unchanged; the five items had to be looked at as a whole as they were intertwined with each other.

159.“Release pro-democracy activists” was the very demand of the 1989 pro-democracy movement. It was a demand to release all the pro-democracy activists who were imprisoned and support would be given to facilitate their safe departure overseas. While the slogan was later changed to “release rights defenders” due to the rights defence movement in the Mainland, both carried the hope that there would be no more political dissidents.

160.“Reverse verdict on 1989 pro-democracy movement” was to recognise the 1989 movement as patriotic and democratic. “Investigate liability for the massacre” was to make investigations and hold people accountable for the massacre. The two Agendas were interwoven as there could be no accountability until the verdict was reversed.

161.“End one-party dictatorship” and “construct a democratic China” were the continuation of the demands of the 1989 pro-democracy movement. As dictatorship and democracy were opposites, China’s transition to democracy would not be possible when dictatorship existed.

162.The understanding of D2 and the Alliance on “dictatorship” was that all powers including the executive, legislative and judicial branches were under the control of those in power; they were political interventions in people’s lives; people were silenced and punished for speaking out, and all or most of the rights and freedoms protected by the Constitution that people were entitled to were denied. A civil society existed only when people were able to enjoy freedoms of speech, of press and of association; it was only then that there would be a basis to talk about democracy. “Dictatorship” was a very huge obstacle in the path to democracy.

163.The view of D2 and the Alliance on “constructing a democratic China” was that not until a civil society is established could there be a discussion on which political system is the best for China. In many countries, constitutional amendments could go ahead when there were demand and consensus from the people. Without putting an end to dictatorship, constructing a democratic China would not be possible; that was why the Alliance kept working on human rights and freedom issues.

164.To summarise, “ending one-party dictatorship” and “constructing a democratic China” meant first getting rid of dictatorship, then restoring people’s basic rights, establishing a civil society, coming up with a system on the transitioning to democracy through civil discourse, adopting a bottom-up approach when shaping the political system and then putting it into practice. On this path, the first step was to “end one-party dictatorship” and the last step was people’s decision. By that time, people should be able to decide if they would continue to choose the leadership of the Communist Party. The Alliance was not going to decide any path for China’s transitioning to democracy, nor was there any discussion on what kind of system China should adopt. What the Alliance did was to support the demands put forward by the organizations or people in China.

165.D2 contended that “ending one-party dictatorship” was not tantamount to ending the leadership status of the CCP. To put it more precisely, whether the CCP should lead should be decided by the people, and the question of being led by whom could not be decided before the people have had a discussion. Article 2 of the Constitution clearly stipulates that the power belongs to the people. The people, as principal entity of the country, could decide whether the CCP should lead. Since the civil society had not yet been formed, the discussion of being led by whom would be meaningless. The most important thing was getting rid of dictatorship, the emergence of civil society, and in the end, the people should decide the future of the party. D2 pointed out that one-party was in itself in breach of the Constitution, because one-party dictatorship deviated from the system of multiparty cooperation, and more importantly, deviated from the fundamental rights of citizens under the Constitution.

166.D2 agreed that the “one-party” in “end one-party dictatorship” referred to the CCP, the incumbent ruling party of China. What the Alliance said was that the CPP should not impose a dictatorship, but did not say that the CCP should not lead, because whether it should lead or not was to be decided by the people, rather than the Alliance.

167.D2 did not know the origin of “one-party dictatorship” mentioned in this Agenda as drafted by SZETO Wah. D2 considered that what had been said by important figures in the history of the CCP on “one-party dictatorship” was consistent with the understanding of the Alliance. For example:

(1)  In the article ‘On Coalition Government’, Chapter 1 Selected Works of Mao Tse-tung (Volume III) (D2-1)[116]: Mentioned therein that the “system … [should not] have a one-class dictatorship and one-party government” and that one-party dictatorship of the Kuomintang had forfeited popular support. D2 had not given thoughts to “provided their attitude to the Communist Party is co-operative and not hostile” as mentioned therein. D2 stated that “people’s democratic dictatorship” in the existing Constitution was not tantamount to one-party dictatorship, and that the Constitution did not mention one-party dictatorship.

When the Alliance formulated the Agenda of “ending one-party dictatorship”, D2 had not read this article.

(2)  Prisoner of the State: the Secret Journal of Zhao Ziyang written by ZHAO Ziyang, the late General Secretary of the Central Committee of the CCP (D2-2)[117]: D2 said that the following were consistent with the last two Agendas of the Alliance: HU Yaobang agreed that there had been failure in building real democratic politics, and emphasised the need for the ideas of democracy, freedom, equality, and fraternity; what ZHAO Ziyang proposed about the rights of citizens and having a dialogue with the people; and what he said after 1989 about the choice of the people. When questioned on “the Communist Party's continued ruling position” and “[e]ven without a multiparty system, we should have expanded various forces of political participation as much as possible” as mentioned in the book, D2 stated that leadership by the CCP did not mean one-party dictatorship, and by the time of constructing a democratic China, whether the CCP could rule should be decided by the people.

D2 read this book when it was published in 2009. He did not share it with important figures in the Alliance, but everyone knew its existence. He believed that this book could reflect the views of everyone, and that the Alliance’s decision to sell this book in the June 4^th Museum meant that they agreed with the views of ZHAO Ziyang as to the pathway of reform, and hoped for an orderly development of China towards a democratic country.

(3)  In the Selected Works of Deng Xiaoping (Volume II), “On the Reform of the System of Party and State Leadership” and “All Democratic Parties and Federations of Industry and Commerce are Political Forces Serving Socialism”, respectively delivered in 1980 and 1979 (D2-3 and D2-4)[118]: the Alliance agreed with the practice of democracy in political life, in economic management and in all other aspects of social activity mentioned therein. As to “multi-party cooperation” mentioned therein, D2 said that one-party dictatorship deviated from the system of multiparty cooperation under the Constitution, but the Alliance aimed at ultimately reaching a system of the people’s decision rather than a system of multiparty cooperation. No matter what the Constitution stipulated as the fundamental system of the state, the people ultimately decide. It is democratic for the people to change the fundamental system of the state through constitutional amendment, because Article 2 of the Constitution provided that power belongs to the people.

The Alliance had had discussions on what Articles of the Constitution could guide the Agendas of the Alliance; for example, the HK Alliance Dispatch often mentioned the rights of citizens under the Constitution. As to constitutional amendment, not only had the Alliance had discussions, when Charter 08 was being gestated and pushed for in the Mainland in 2008, after discussion by the Standing Committee, the Alliance had given support under its name, and pushed for it on the society level. Charter 08 was a bottom-up constitutional amendment movement initiated by civilians, and its content was in line with the ideologies of the Alliance that the people decide the future of the country and that of democratic election. D2 pointed out that the Constitution had been rewritten four times and amended five times, and that Charter 08 was akin to rewriting the Constitution.

(4)  ‘Speech delivered by Premier WEN Jiabao at Tsinghua University (Full text)’ (D2-6)[119]: the views on the rights of the people as provided by the Constitution, the people being the source of all power of the state, democratic election, democratic decision making and democratic governance contained therein, were consistent with the last two Agendas of the Alliance.

168.D2 quoted an article titled “How will China change: by reform or revolution?” presented by D3 representing the Alliance on a June 4^th 25^th anniversary seminar (D2-5)[120] in 2014, wherein a review of the arrangements of the separation of powers under the existing provisions of the Constitution and “[w]hether and/or how the President should be elected directly by all the citizens should also be considered as one of the ultimate goals of reform” was mentioned. That there could not be a separation of powers under one-party dictatorship was related to the Five Action Agendas of the Alliance.

169.As to whether the Alliance had tried to have a dialogue with the State leaders concerning those things they had in common, D2 stated that the Alliance rarely had the opportunity to communicate with the State leaders, and many members (himself included) did not have home return permits. He once met ZHANG Dejiang, then Party Secretary of Guangdong, while in a special delegation of Legislative Council (“LegCo”). At the time, he just reiterated “reverse verdict on 1989 pro-democracy movement, rehabilitate June 4^th.”  On the other hand, they were disappointed that what the State leaders had said were not implemented. Therefore, on the Alliance’s level, they were still shouting out to the State leaders in the hope that the provisions of the Constitution and the words of the State leaders with which they agreed could truly be implemented.

170.The Agenda of “ending one-party dictatorship” of the Alliance, from its formulation in 1989 up to the present, had never carried the meaning of “ending leadership by the CCP”. They hoped for the end of “dictatorship”, but not “leadership by the CCP”; ultimately, the people were to decide. They hoped for the implementation of the rights under the Constitution, because even under the leadership by the CCP, there should not be dictatorship.

171.As to the reason why the Agenda of the Alliance was not “end dictatorship” but “end one-party dictatorship”, D2 said it was because the Alliance could not shy away from the actual political system of China being one-party, where one-party dominated, dictated, controlled and commanded all the power. “Dictatorship” and “one-party” were not necessarily connected. However, if there was no mechanism of a democratic election under one-party dictatorship, the people could not rectify the dictatorship with their votes. The Alliance and D2 opposed dictatorship as an entity, and the reality of China was dictatorship by the CCP. In other words, when they disagreed with “dictatorship”, they effectively disagreed with “dictatorship by the CCP”. CCP could be in power, but should not impose a dictatorship, should not suppress and deprive people of their freedom.

172.D2 stated that the word “dictatorship” carried a derogative meaning, and carried the same meaning as “dictatorship” in the Constitution. According to his own (but not the Alliance’s) understanding of the Chinese system, “people’s democratic dictatorship” in the Constitution meant a dictatorship by the people in a democratic situation, which depended on how the object of the dictatorship was defined. The CCP viewed certain people as enemies of the people and should therefore be subjected to dictatorship.

173.D2 contended that “ending one-party dictatorship” did not carry the meaning of ending leadership by the CCP, and absolutely did not carry the meaning of overthrowing or undermining leadership by the CCP; rather it carried the hope that the CCP would cease dictatorship. When the Alliance created this Agenda in 1989, there was absolutely no intention to breach the stipulations of the Constitution.

174.As to the prosecution’s allegation that the real intention of the Alliance was to overthrow leadership by the CCP rather than advocating for constitutional amendment, D2 totally disagreed. He stated that constitutional amendment was a development that the Alliance would be glad to see, but without a civil society, there could not be a discussion on constitutional amendment. Further, in a supporting role, the Alliance would not instruct the people of China to demand constitutional amendment; rather, the demand should have been raised by the people in the Mainland, and they were then to offer support. As could be seen from the support of Charter 08 by the Alliance, they had hoped for an end to one-party dictatorship through the means of a lawful constitutional amendment. The difficulty was that they did not know what constituted lawful means in the Mainland, so the Alliance avoided telling Mainlanders what to do or what not to do, and respected their own choice of what means to be utilised in the circumstances in the Mainland to attain the goal.

175.As to the prosecution’s allegation that the Alliance smeared the CCP under the pretense of democracy, D2 said that all the actions, marches, demonstrations and petitions by the Alliance were targeted at specific events, and were not fabricated under the pretense of democracy.

176.As to the prosecution’s allegation that the Alliance clearly knew that after the implementation of the NSL on 1^st July 2020, continuing with the Agenda of “ending one-party dictatorship” was in breach of the NSL, D2 disagreed. As he had testified during an online hearing of the U.S. House Committee on Foreign Affairs, he did not know where the red line lay. The Alliance had been chanting this slogan for 30-odd years, and no one ever told them that that was an unlawful goal. After each June 4^th Assembly, all previous Chief Executives and Chief Secretaries for Administration said that they respected the rights of the Hong Kong people, therefore D2 believed that it was not unlawful. Further, when the Constitution was amended in 2018, WANG Zhimin, the then Director of the Liaison Office of the Central People’s Government (“LOCPG”), once said that “one-party dictatorship” was a false proposition, because there was no mention of one-party dictatorship in the Constitution; Jasper TSANG Yok-sing, former President of LegCo, had also stated that “one-party dictatorship” was a false proposition; therefore, the Agenda complied with the Constitution.

177.As to the reason why D2 had said during the hearing that he was not sure whether the Agenda of “ending one-party dictatorship” was in breach of the NSL, that was because during that period of time, as the Chairperson of the Alliance, reporters often asked him whether he was concerned that the Agenda was in breach of the NSL. At the time surrounding the promulgation of the NSL, apart from questions from reporters, he did not hear anyone in society saying that the Agenda of “ending one-party dictatorship” might be in breach of the NSL. He believed that this Agenda was lawful, because after 1^st July 2020, the Police did not ban the Alliance in accordance with the provisions in the Societies Ordinance for posing a danger to national security.

178.D2 said that since his university years, he had been thinking that China which was in suffering was in need of a future. He hoped that the country would develop into a wealthy, powerful, democratic and free state, and resolved and hoped that China would bring a bright future to its people, so he was definitely patriotic.

179.The Facebook post of the Alliance titled “Open letter of appeal from the Alliance Chairperson LEE Cheuk-yan and former Vice Chairperson HO Chun-yan” (D2-7)[121] showed that D2 and D3 had voluntarily disbanded the Alliance on 17^th September 2021. At the time, many of the Standing Committee members of the Alliance (including D2) were serving sentences in prison for the 2020 June 4^th Assembly. He thought that it was difficult while in prison to lead an organization or to find someone to take over, and also did not want to have more people being put behind bars, so he voluntarily disbanded the Alliance.

180.D2 said that since the NSL came into force on 1^st July 2020, up until October or November 2021 when he was arrested for this case, that in the one year or so, absolutely no one (including the Police) had told the Alliance that its slogan of “ending one-party dictatorship” was in breach of the NSL or had told them to stop.

R.2  Cross-examination by D1

181.“Introduction to the HK Alliance” was a promotional material published by the Alliance; the same version would be used if there was no change.

182.In the “Introduction to the HK Alliance” published during the first five years of the Alliance’s establishment[122], it was mentioned that “the short-term objective is to support the Chinese people in overthrowing the ruling syndicate of Deng-Li-Yang”. The three of them did not represent the entire CCP. D2 said that the crackdown was ordered under the command of those three leaders, so they should be held accountable for the massacre, and that related to the establishment of the Alliance. The Alliance never mentioned overthrowing the CCP as its objective.

183.In the sixth “Introduction to the HK Alliance” in 1994[123], the above short-term objective had already been deleted, and it did not mention “overthrowing” any person or system again. Up until the disbandment of the Alliance, the content of the “Introduction to the HK Alliance” remained the same. No one ever proposed to amend the “Introduction to the HK Alliance”, to add words of “overthrowing” or “undermining”, and the Alliance had never echoed the slogans of “Down with the CCP” and “God damn the CCP” that the assembly participants had chanted.

184.After the NSL came into force, D2 was the Chairperson of the Alliance from 2020 to 2021, while D3 and D4 were Vice Chairpersons. If there were any disagreements between the Chairperson and the Vice Chairpersons, the Standing Committee would vote to decide. D2 considered that his understanding of “one-party dictatorship” as given in his testimony was consistent with the understanding of D3 and D4.

R.3  Cross-examination by D4

185.During D2’s examination-in-chief, he had said that the establishment of the Alliance was announced on the day of the “Concert for Democracy in China”. D4 quoted from documents[124] and pointed out that the announcement date should be 21^st May 1989, the day of the Million-strong March. D2 believed that D4 was correct, and he might have mixed up the relevant dates.

R.4  Cross-examination by the prosecution

186.As to D2’s understanding of human rights and freedom in the Mainland in 1989, he considered that the atmosphere was more open at the time, and later regressed slightly due to opposition from power within the Party against opening up. All in all, the entire China was moving towards a more open society.

187.On 30^th May 1989, four Hong Kong people, including D2, bringing along one million RMB in Foreign Exchange Certificates, went to Beijing to support the people in Tiananmen Square. D2 considered what they did appropriate. Since he was engaged in labour union and social civic movements, he hoped that the people could step forward and voice out and take their destinies into their own hands. That was the stance that he had been striving towards his whole life. He was delighted to see students and citizens fighting for the freedom of the press, for the freedom of speech, and for democracy. D2 thought that they were patriotic, and what they did was appropriate. Before he embarked on the trip, he already knew that the People’s Daily in the Mainland had in the “April 26 Editorial” defined the actions of the people in Tiananmen Square as riotous and being counter-revolutionary. D2 said that such was the official point of view. From the civilian point of view, it was a patriotic democracy movement, and he insisted on taking the civilian stance. When questioned that he clearly knew at the time that the laws of the State could possibly be breached, D2 said he had not thought about such things at all.

188.As to Charter 08, D2 said that only after the initiators had been arrested and sentenced, did he realise that they were viewed in the Mainland as having breached the laws. The Alliance thus initiated movements in Hong Kong to have the relevant people released. As to D2 and the Alliance knowingly continuing to advocate support for them, D2 said it was the exercise of the rights of Hong Kong citizens protected by one country, two systems and the BL.

189.The Members’ General Meeting convened annually was the highest authority of the Alliance, and it could also be convened for particularly important matters. The Standing Committee had been delegated by the Members’ General Meeting to carry out the work of the Alliance. Members of the Standing Committee were elected by the 200-odd member organizations, serving a one-year term. Since the establishment of the Alliance, D2 had always been a Standing Committee member, involved in the activities of the Alliance; he clearly understood the stance and propositions of the Alliance, and had always upheld the Five Agendas. Since the establishment of the Alliance up to 8^th September 2021 (end date of the charge period), the Five Action Agendas, including “end one-party dictatorship”, had never been changed.

190.D2 said that both the Alliance and himself agreed that the CCP was an autocratic regime which strangled the voice of the people, particularly that of the dissidents; all in all, it strangled democracy in the Mainland, and suppressed the basic rights of the people through commanding all power of administration, legislation and judicature. Both the Alliance and he agreed that as regards the country under the leadership of the CCP, all things it did were against human rights, there was no election with real participation of the people, people on the Political Consultative Conference were all window dressing, and in practice it was a one-party dictatorship.

191.As to his attitude towards the CCP, D2 disagreed that he had always harboured extreme hostility towards the leadership by the CCP of the State. Stemming from his love towards the people, he hoped that the CCP would reform, so that the people could enjoy the rights and happiness they deserved. He was of the view that the CCP had not done enough about this. As to whether he had always been dissatisfied with the leadership of the State by the CCP, D2 said that he would “commend the rights, condemn the wrongs”. He was dissatisfied with certain policies, but felt that certain policies had been the way they should have been, and his greatest dissatisfaction was that the people lacked the fundamental right to speak out.

192.When asked which part of the evidence submitted in court could be seen as “commending the rights”, D2 said that to “commend the rights” had always been his attitude towards matters, for example, he was dissatisfied that migrant workers did not have resident status, but welcomed the policies that reduced poverty and improved the living standards of certain people. D2 did not speak out for what he thought the Mainland did well, because the Alliance was not to comment on the development of China as a whole, but to speak out and respond to particular topics as to the situation in the Mainland. As to the Alliance’s criticisms on events in the Mainland being wholly negative, without anything positive, that was because the Alliance responded to negative topics, and based on the Alliance’s supportive role, it only spoke out on negative topics. Good things did not call for the response of the Alliance, only bad things did. So, to “commend the rights” was only D2’s personal attitude.

193.D2 said that when he was young, he admired CCP’s effort towards organizing workers and farmers and determination to resist Japanese invasion. He agreed that since the establishment of the Alliance, he all along opined that leadership by the CCP was not good for the country. The Alliance hoped that the CCP would treat the country and the people better, and also wanted the best for CCP.

194.As to whether the Agenda of “ending one-party dictatorship” included the demand for party alternation in the Mainland, D2 said that the Alliance had not discussed this. He and the Alliance had not reached the stage of demanding party alternation, and had rather hoped for having a civil society first. As to whether there was to be party alternation in the future, that was to be decided by the people. As D3 said, party alternation was an ordinary thing. “End one-party dictatorship” as advocated by the Alliance meant that when the people had a choice, there would be constitutional amendment, and the constitutional amendment could design another democratic political system, so that the people would have a choice. The constitutional amendment process could be initiated by the CCP, and, just as ZHAO Ziyang had said, could open up all the way to a full democracy.

195.D2 agreed that when he had said “constitutional amendment”, he was referring to the 2018 Constitution. The entire Constitution had to be rediscussed from scratch or even rewritten. D2 said that in whichever version of the Constitution, it referred to leadership by the CCP, and many provisions mentioned CCP in a leading role. In order to achieve a civil society and the possibility of party alternation decided by the people, the Constitution must be amended.

196.D2 agreed that both the Alliance and himself considered that leadership by the CCP of the State was not necessarily guaranteed. Whether Article 2 of the Constitution existed or not, power of the State rightfully belongs to the people. No matter what the provisions of the Constitution were, the most important thing was that the people were to decide. The people could alter the fundamental system of the State under the Constitution, could amend the Constitution, could shape the Constitution as they saw fit, and could decide whether there was a need to change Article 1 of the Constitution.

197.D2 disagreed that since the establishment of the Alliance, both he and the Alliance and had hoped that the CCP would no longer rule, because that was to be decided by the people. Both he and the Alliance were not in a position to agree or disagree. He denied that the Agenda of “ending one-party dictatorship” as advocated by the Alliance and himself was actually openly expressing the hope that the CCP no longer ruled.

198.D2 disagreed that he and the Alliance: considered that “end one-party dictatorship” could not be achieved through intra-party reform of the CCP; had never included intra-party reform in the Alliance’s Agendas; and did not genuinely and honestly hope to achieve the aim of democracy and basic human rights through intra-party reform. D2 said that the Alliance hoped that the CCP would voluntarily lead the reform, because that would be the smoothest way, and their letters to the State leaders also urged the CCP to move towards democracy. Both he and the Alliance considered that the human rights or democratic situation of the country had its ebb and flow. No matter who was to lead the CCP and rule, the demands of the Alliance would not be met.

199.D2 disagreed that the Alliance had never openly proposed intra-party reform of the CCP. For example, D3, as a representative of the Alliance, had openly spoken on how to bring about a reform of the Constitution, and proposed that a roadmap for reform was to have the CCP voluntarily initiate the separation of powers and to let the people have a choice[125]; the Alliance had also promoted this, talking about the path for China towards democracy in its yearly June 4^th talks; when CCP members came to Hong Kong to have a dialogue with them, D2 did express that the Alliance hoped that reform could achieve democracy, and that it could be through an internal constitutional amendment; the Alliance had frequent contacts with the NPC deputies in LegCo, and LegCo had also had June 4^th motion debates every year, so it was believed that they knew the views of the Alliance. D2 personally also hoped for a voluntary change within the CCP.

200.D2 agreed that when China resumed the exercise of sovereignty over HKSAR in 1997, he once said that he would continue to propose the Agendas of the Alliance in Hong Kong, including “end one-party dictatorship”. D2 said that the Agenda of “ending one-party dictatorship” was definitely lawful in Hong Kong; all the Chief Executives since 1997 expressed that they respected the Alliance’s holding of June 4^th Assemblies, and this slogan would definitely appear in June 4^th Assemblies. As to whether the proposition of “ending one-party dictatorship” could be in breach of Mainland laws, D2 said that he had no knowledge.

201.D2 considered that the building of a civil society and the possibility of allowing party alternation should be permissible under the existing Constitution. He agreed that after the conviction of LIU Xiaobo, any person doing similar acts could possibly be convicted in the Mainland. As to whether the Alliance would support people doing things that might be in breach of Mainland laws, D2 said that those people should not be seen as being in breach of Mainland laws.

202.The Alliance supported the use of means that were peaceful, non-violent and in accordance with Hong Kong laws to implement its Agendas. The Alliance’s stance on rights defenders in the Mainland was that, if they were arrested for exercising their rights of freedom of speech under the International Human Rights Covenants and the Constitution, for example, the “709 crackdown”, the Alliance would offer support. The Standing Committee would have discussions on individual cases on the stance to be taken by the Alliance and on whether to offer support.

203.In 2003, in accordance with the constitutional requirement under the BL, HKSAR moved forward with Article 23 legislation for national security. D2 said that, at the time, the Alliance did look into whether the Five Agendas, including that of “end one-party dictatorship”, could be in breach of the national security provisions. Therefore, in scrutinising the relevant legislation, he once asked Regina IP (the then Secretary for Security) whether the Alliance’s continued upholding of “ending one-party dictatorship” and “constructing a democratic China” would be in breach of the law, and the response was that provisions in the draft legislation stipulated that there must be use of force or serious unlawful means, and Regina IP did not consider the chanting of slogans unlawful means.

204.As to the insertion of “Leadership by the Communist Party of China” in the 2018 constitutional amendment, D2 said he did notice this, but did not pay particular attention to it; he did not notice the details of the explanations or statements made by Mainland principal officials on this matter because he considered that everyone knew and confirmed that it was leadership by the CCP; as could be seen from many provisions in the Constitution, leadership by the CCP had always been clear. At the time, D2 already knew clearly that Article 1 of the Constitution stipulated that leadership by the CCP was the fundamental system of China, and he thought that, at whatever point in time, leadership by the CCP had always been the reality. D2 reiterated that a month after the constitutional amendment, when asked by a reporter whether “end one-party dictatorship” could still be chanted in Hong Kong, WANG Zhimin, then Director of LOCPG, answered that in the Constitution, “not one Article mentioned one-party dictatorship, so this is a pseudo-proposition.” [126].

205.The prosecution quoted D2’s testimony given in a U.S. House Committee on Foreign Affairs online hearing on 1^st July 2020[127], in which he had alleged that after the NSL had come into force, the Alliance had sufficient reason to believe that persisting in proposing the Five Action Agendas, including “end one-party dictatorship”, could be in breach of the NSL. D2 resolutely disagreed with this. He said that many reporters had asked him about this at the time, and he had answered that the Alliance would uphold the Five Action Agendas. D2 had believed that persisting in proposing the Five Action Agendas would definitely not be in breach of the NSL, because: (1) the slogan had been chanted for 30-odd years, and no one had ever said that there was any problem; (2) according to his understanding of the NSL, offences required the involvement of “unlawful means”, and the Alliance had never told people to commit any unlawful acts; and (3) at the June 4^th Assembly before the NSL had come into force, the Police did not allege that the Alliance had breached the law; according to what he knew, in 2021, the Police did not prohibit the Alliance’s June 4^th Assembly on the ground of the NSL either.

206.Surrounding the promulgation of the NSL, the Alliance had discussed the repercussions that the NSL had on human rights in Hong Kong, and made a statement on that, but the repercussions that the NSL had on the Alliance’s own work had not been discussed at all; nor had the impact that the NSL had on the Alliance’s activities and speeches been considered, because they did not consider what they did to be illegal. D2 disagreed that after the NSL had come into force, the Alliance’s persistence in advocating the Five Agendas, including “end one-party dictatorship”, could be in breach of the provisions under the NSL, including that of subversion.

207.D2 agreed that the State organs of power as listed in Chapter III of the Constitution were under the leadership by the CCP. He was of the view that the Constitution had not specified the relationships between these organs and the CCP. These organs could continue to operate independently and the leadership by the CCP was not necessarily required.

208.As to the prosecution’s assertion that according to Article 1 of the Constitution, the defining feature of the characteristic socialism as practised in China was “leadership by the Communist Party of China”, D2 disagreed. He considered that the most prominent feature should be “power to the people”. D2 disagreed that “leadership by the Communist Party of China” as provided by Article 1 of the Constitution necessarily included leading the State and the people, and he considered that it should be “the people leading the State”. D2 agreed that according to wordings of the Preamble to and Article 1 of the Constitution, not only did the CCP lead the Chinese government, it also led the Chinese people of all ethnic groups. D2, however, said that it was actually very difficult to grasp the real meaning, because it involved many different ideologies and definitions.

209.As to the article “How will China change: by reform or revolution?” presented by D3 in 2014 representing the Alliance (D2-5)[128], D2 agreed that the content of the article had nothing to do with the 2018 Constitution. D2 contended that the article mentioned that the path to reform could be through changes to the Constitution or constitutional amendment, and to achieve what the article said, the existing Constitution had to be amended and reviewed, so as to achieve separation of powers. He agreed that the article did not mention changing leadership by the CCP through constitutional amendment, because what the Alliance addressed was whether the people had the right to election, rather than whether the CCP was to lead. D2 agreed that the article did not directly or indirectly mention an amendment to leadership by the CCP.

210.D2 said the Alliance was in a supporting role and would not lead or advocate a roadmap to change China, hence the emphasis was that the Chinese people needed to have a platform or civil society representing different interest groups to discuss the future of China. The Alliance did not talk much about constitutional amendment, because there was yet to be a foundation of civil society. D2 disagreed that apart from the above article by D3, the Alliance had not on other occasions mentioned constitutional amendment, and contended that the Alliance had mentioned constitutional amendment in relation to the Charter 08 matter.

211.D2 agreed that the Alliance had never mentioned a change or termination of the leadership status of the CCP through constitutional amendment, but disagreed that the Alliance, in proposing the Five Action Agendas, including “end one-party dictatorship”, had hoped that others would support ending leadership by the CCP. He stated that “ending one-party dictatorship” was not equivalent to ending leadership by the CCP.

212.D2 did not dispute making the speeches on various occasions as shown in the footage (P494, P495) referred to in the “Admitted Facts”. He confirmed that the content on the website and the social media platforms set up in the name of the Alliance were made by the Alliance and reflected its stance, and that the opinion expressed by the Alliance on such platforms also represented D2’s personal stance.

213.The Alliance raised funds to establish the June 4 Memory & Human Rights Museum website and provided content of the physical June 4^th Museum as its initial materials. It was later handed over to others to operate on their own. D2 said when he was incarcerated in April 2021, the website had not yet been formally, completely and openly in operation. He agreed that the June 4^th Museum situated at Ngai Wong Commercial Building in Mong Kok was established by the Alliance and operated through a group or committee, and that the property was an asset under the name of the Alliance.

214.D2 himself agreed and supported the Alliance’s Agenda of “ending one-party dictatorship”. He had all along advocated this Agenda, not in the hope that more people would harbour hostility towards the CCP, but in the hope that the public would hold the CCP to a high standard, that the CCP would respect democracy and human rights of the people, and that more people would support this Agenda.

215.As to whether the Alliance had hoped that more people would put the proposition of “ending one-party dictatorship” into action, D2 said that the Alliance would not tell people what actions to take to end one-party dictatorship. What the Alliance told people to put into action must be specific tasks, rather than abstract ideologies, for example, to demand the release of rights defending lawyers in the “709 crackdown”, to remember June 4^th, to support the Tiananmen Mothers. In other words, if something related to the ideologies of the Alliance happened, the Alliance would call for support. If nothing happened, “end one-party dictatorship” would simply be a slogan, a thought, an idea, an ideology, and the Alliance would still carry on with the work on the June 4^th Museum, exhibitions commemorating June 4^th, and regular street activities to support the imprisoned. D2 agreed that when something happened, the Alliance could gather the power of a group of supporters through activities.

216.As to the prosecution’s allegation that D2 and the Alliance had all along intended others to overthrow or undermine the fundamental/basic system of China under leadership by the CCP, or to overthrow the body of central power, by means in breach of the Constitution, D2 disagreed. He was of the view that the Constitution restrained the government or organs of the state, not the people, so the people could not be accused of being in breach of the Constitution. However, the people did have responsibilities to observe the provisions under the Constitution.

217.D2 agreed that the speeches made by relevant people in the following four clips of footage, in which he was not present (except for TB4/SN67), represented the stance of the Alliance and himself:

(1)  TB4/SN62[129]: D2 generally agreed that what D3 had said when interviewed on “Experts on Current Affairs” (名家論正) between 1^st and 9^th July 2020 represented the stance of the Alliance and D2, except D3 did not make clear some matters (for example: work adjustments, certain members of staff could leave, etc.);

(2)  TB4/SN67[130]: on 21^st February 2021, D3 spoke at the press conference held at the June 4^th Museum for commemorating SZETO Wah, and D2 was present;

(3)  TB4/SN68[131]: on 22^nd or 23^rd February 2021, D4 spoke when interviewed by the press at the June 4^th Museum; and

(4)  TB4/SN71[132]: on 15^th April 2021, D4 spoke during a protest jointly organized by the Alliance and the LSD.

218.D2 disagreed with the following allegations by the prosecution:

(1)  The Alliance and he all along advocated the Agenda of “ending one-party dictatorship” in the hope that others would make it their long-term objective to overthrow or undermine the fundamental/basic system of China under leadership by the CCP or to overthrow the body of central power;

(2)  The Alliance and he all along advocated the Agenda of “ending one-party dictatorship” in the hope that others would wait for an opportune time to act, in order to achieve the goal of overthrowing or undermining the fundamental/basic system of China under leadership by the CCP or of overthrowing the body of central power;

(3)  In case others could not overthrow the fundamental/basic system of China under leadership by the CCP or the body of central power straightaway, the Alliance and D2 hoped that others could progressively undermine the fundamental/basic system of China under leadership by the CCP; and

(4)  During the material period, D2 and the other defendants incited others to organize, plan, commit or participate in ending leadership by the CCP, by means in breach of the Constitution, with a view to overthrowing or undermining the fundamental/basic system of China established by the Constitution, or to overthrowing the body of central power.

S.  The 2^nd defence witness: Ms CHOW Hang-tung (D4)

S.1  Examination-in-chief

219.D4, aged 41, a barrister, was also the last Vice Chairperson of the Alliance. Since her primary school years (early 1990s), D4 had already followed her mother in attending the Alliance’s June 4^th candlelight vigils. After graduation from the university in 2010, she had been a member of the Alliance’s staff for about half a year, later stayed as a volunteer, and was elected as a member of the Standing Committee of the Alliance in late 2014. In late 2015, she became Vice Chairperson of the Alliance, a position she held until its disbandment in 2021.

220.D4 said she had witnessed the final days of the Alliance. While the Chairperson LEE Cheuk-yan (D2) and Vice Chairperson HO Chun-yan (D3) of the Alliance had been incarcerated one after the other in the period from April to June 2021, amongst the three Chairperson and Vice Chairpersons, she was the only one yet to be incarcerated, so she was the one responsible for the words and deeds of the Alliance during this period.

221.D4 admitted that up to its final moment, the Alliance was still upholding the Five Action Agendas, which formed an integral whole. “End one-party dictatorship” in particular was a conviction that the Alliance could not abandon, and this conviction ran through all the Alliance’s actions, speeches and articles. D4 said that whether the Alliance existed or not, she herself would continue to participate in movements to end dictatorship.

222.D4’s testimony on the issue of “ending one-party dictatorship” involved the following three main points:

(1)  The substance and demand of the words “end one-party dictatorship”, which could then lead to expressions or manifestations in various forms or wordings;

(2)  Whether “end one-party dictatorship” was subverting the State power, or just subverting an unlawful state of party dictatorship; and

(3)  How the defendants sought to “end one-party dictatorship”, and whether what they did, or allegedly incited others to do, were unlawful means not permitted by the law.

223.As to point (1), i.e., the actual meaning of “end one-party dictatorship”, D4 stated that her expression or understanding of the word “dictatorship” might not be the same as that of D2. D4 contended that Vladimir Lenin, forefather of the Communist Party, defined “dictatorship” as a power based on force and untrammeled by the law. She considered that such a definition was applicable to the current situation of the CCP, because the CCP controlled all the organs of the State in China, infiltrated all social, commercial and religious organizations, was unbound by law and unconstrained by democratic elections, lacking even relatively soft checks and balances. Such a condition of State power being monopolised by a single political party and a complete loss of balance against the power of the society was what D4 meant by “one-party dictatorship”. Although the Alliance had not held a seminar discussing the definition of “dictatorship”, D4 considered her understanding similar to that of other members of the Alliance (in particular, Standing Committee members).

224.D4 said that members of the Alliance (in particular, Standing Committee members) all considered China a country under one-party dictatorship. “One-party” referred to the CCP, but the concept of one-party dictatorship was not confined to the CCP; consequently the Alliance’s call to “end one-party dictatorship” was not confined to the CCP.

225.The bitter fruit of “one-party dictatorship” was that State power would repeatedly run amok and be abused. What the Alliance wanted to end was such a lawless state of affairs, hoping that a system of constitutional democracy could be built in the country, that public power could operate under the framework of the rule of law and equality, that the country could truly belong to the people. Put it simply, the Alliance demanded that those in power obey the law, and that the people could hold them accountable. Only when all of these had been achieved, could “one-party dictatorship” be ended. From this perspective, amongst the Five Action Agendas of the Alliance, “release pro-democracy activists”, “reverse verdict on 1989 pro-democracy movement” and “investigate on liability for massacre” were intrinsically indispensable requirements to “end one-party dictatorship”. The substance of the Alliance’s call to “end one-party dictatorship” was to bring an end to this unlawful state of affairs.

226.In short, D4 considered “dictatorship” to be power based on force and untrammeled by the law, leading to a state that begot abuse and lawlessness. The Alliance had all along been demanding that those in power be held accountable for their words and deeds. D4 stated that, to her, the one truly subverting the State power had never been the Alliance. In China, in the current reality (including the charge period and the present), the one truly capable of and currently subverting the State power had always only been the CCP.

227.As to point (2), i.e., whether “end one-party dictatorship” was subverting the State power or subverting an unlawful state of party dictatorship, D4 stated that the most fundamental principle of “State power” was sovereignty of the people, and that her statement was supported by Article 2 of the Constitution and the sentence “The Chinese people thus secured power and became masters of their own country.” in the fifth natural paragraph of the Preamble.

228.D4 contended that “dictatorship” by the CCP had not only subverted sovereignty of the people, but also subverted numerous prescriptions of the Constitution as to the operation of State organs. Such prescriptions were also part of the fundamental/basic system of the State. For example, the Constitution had vested the highest power in the NPC, but the NPC did not have real power to make decisions. Hence, what had been subverting the State power was not the Alliance, but the reality of “dictatorship”. “End one-party dictatorship” was a demand to subvert an unlawful party dictatorship and return power to the people, so that the State power could be returned to the real masters. D4 considered the fundamental/basic system of the state to be sovereignty of the people. The NPC, as the highest state organ of power, was in reality not an organ of real power but a rubber stamp.

229.D4 further stated that the Constitution did not specify the scope, responsibilities, parameters, implementation and operation of leadership by the CCP. Specific provisions of the law did not give substance to such leadership. Before the 2018 amendment, even without the clause about leadership by the CCP, the State organs had already operated in such a way.

230.As to point (3), i.e., the means to “end one-party dictatorship”, D4 said that the Alliance did not advocate for others to use unlawful means, but rather hoped that power be returned to the people through sunlight, system and the law. “Sunlight” meant that all demands and actions of the Alliance were open, and they would explain to the public their analysis of current situation and the direction for change.

231.D4 said that she and the Alliance were commoners without power or prestige and could not directly “bring” the CCP “to justice”. They could only employ rather tortuous means to “end one-party dictatorship”, including the collection and preservation of evidence, public education and empowerment. “Empowerment” meant encouraging and educating the public through participation in certain actions, so that citizens would have the strength and ability to act. The Alliance did not provoke the emotion of others, but rather encouraged others to participate in candlelight vigils and marches, educated and equipped more citizens as to how to exercise their civil rights. Other methods included putting pressure on the Chinese and the Hong Kong governments through collective actions, such as demonstrations and marches, and through the vox populi. The Alliance utilised means available to commoners, in trying to break, mitigate or weaken, in a bottom-up manner, the CCP’s wholesale monopoly over the society in all places under its reign (including the Mainland and Hong Kong).

232.D4 said that the Alliance sought to end a power structure, but not the reign of a certain political party. Only by truly building a democratic system and convention, and when the system and the law could truly constrain those in power, could “one-party dictatorship” be ended. The Agenda of “ending one-party dictatorship” demanded a change to the system. To achieve the ultimate goal of “ending one-party dictatorship”, the only means would be democracy and the rule of law.

233.D4 stated that for the Alliance, “end one-party dictatorship” was not just a distant ultimate goal, but also a process of transition from dictatorship to democracy. From this perspective, “end one-party dictatorship” and “construct a democratic China” in the Five Action Agendas of the Alliance were actually two sides of the same coin, describing the same process. Dictatorship could not be ended without constructing democracy, and refusal to end dictatorship was tantamount to refusal to construct democracy.

234.D4 contended that the concept of democracy was to empower the people, allowing them to choose their leaders through free, fair, regular and truly meaningful elections. The support of a series of social foundations was required to achieve that. On the front of constructing democracy, apart from these extrinsic structural indicators, the Alliance placed greater emphasis on building the spirit of democracy, and putting it into practice in all aspects of life. Only when the spirit of truly treating every person as being equal and free took root in society could the system of democracy survive.

235.In simple terms, for the Alliance, “ending one-party dictatorship” was tantamount to “constructing a democratic China”. “End one-party dictatorship” was both the goal and the process, and the ultimate vision was to “construct a democratic China”.

236.D4 stated that the work of the Alliance was not just spreading its propositions, such work itself was putting into practice the Five Action Agendas, including “end one-party dictatorship”. She reiterated that the Five Action Agendas were an indivisible whole. She contended that the aim of the Alliance was not to incite others to subscribe to this Agenda, and then to do acts to “end one-party dictatorship”. The reasons for the Alliance to do certain acts were not to encourage or instigate others to do anything, and each incident and its circumstances had to be individually considered. All the different things done by the Alliance could not be obscurely generalised as the same act of incitement.

237.Based on D4’s own experience and observation as a participant, staff member, volunteer and Standing Committee member of the Alliance, the acts of the Alliance were to put its Five Action Agendas into practice, rather than inciting others to commit any crime.

238.Since she was little, D4 had attended June 4^th candlelight vigils of the Alliance with her mother, which could be seen as her first lesson in civic education. As described by D4, although the subject being dealt with was dark, the vigils had never become a venue filled with hate and despair. On the contrary, the vigils had all along promoted love and responsibilities, that even in the face of injustice in this world, things could still be done to move the world towards a better direction, and such was not incited by a particular slogan or a particular speech made on stage. D4 stated that bearing the suffering connected all people in Victoria Park into one, hence the construction of democracy included maintaining the freedom and the space to talk about the suffering, and allowing love to be expressed. For many years, the magic of Victoria Park in bringing the hearts together stemmed from the love that everyone brought along, but not hatred. They insisted to tell, to record, and to remember the injustice in this world, not to spread hatred, but to amass love.

239.In secondary school, D4 had set up exhibition panels in school to commemorate June 4^th. Later when she was in university in the UK, she held activities commemorating June 4^th. During her preparation of the activities commemorating June 4^th, the Alliance had offered much assistance, including: (1) on the topics of the development of democratic movements in China and June 4^th, the Alliance was a comprehensive database; (2) as inspiration and reference for her actions; and (3) offered actual assistance. In 2010, D4 graduated and came back to Hong Kong. She then started helping out at the Alliance, one of the reasons being that she was very grateful for their help and trust. More importantly, she agreed with the work of the Alliance.

240.In 2010, when D4 was a staff member of the Alliance, she was mostly responsible for inconspicuous work. D4 said that street booths were not venue to incite others to commit crime, because a street booth had to be right to the point and straightforward; it was not possible to have seditious ideologies and hidden messages. Some of her major work was on education, included holding talks, seminars and exhibitions on various topics, in the hope that there be a platform and space for the people to engage in in-depth communications. The other major work was stance-taking in nature, most commonly demonstrations, marches or other kinds of activities in various forms such as kite flying, flower offering at Ching Ming Festival, long-distance run, cleansing the Pillar of Shame, hunger strike, etc. to show the Alliance’s concern about the June 4^th issue and to build pressure. They tried to employ creative methods on other issues, such as voicing support for LIU Xia in a collective head-shaving act.

241.D4 contended that the mandate of the Alliance was to support democratic movements in China and issues that called for their attention were far more extensive than June 4^th. In the half year that she worked as a staff member, the Alliance had issued statements on various topics, and amongst them, the release of LIU Xiaobo and the support of Charter 08 even became the theme of the June 4^th commemoration for that year and a focus topic in the HK Alliance Dispatch (See Issue 85, March 2010 (D4-1), Issue 86, September 2010 (D4-2) and Issue 87, December 2010 (D4-3) of the HK Alliance Dispatch.).

242.The Alliance had a long-standing concern over Charter 08 ever since its initiation in December 2008. Following LIU Xiaobo’s sentencing in December 2009, the Alliance made responses and continued to champion the cause. D4 stated that the theme of supporting Charter 08 permeated many of the Alliance’s actions, and many members, including D4, had signed a petition in support. The Alliance published the full text of Charter 08 in Issue 87 of the HK Alliance Dispatch, and had been distributing pamphlets of Charter 08 at street booths over the years.

243.D4 stated that Charter 08[133] was a near-comprehensive initiative for constitutional reform which put forward a number of specific propositions including how to amend the then-existing Constitution. Although leadership by the CCP was not provided for in the Constitution at the time, CCP dictatorship in effect took precedence over the Constitution, hence the need to constrain political parties by way of constitutional amendment. As regards the propositions of “a federated republic” and “a federation of democratic communities of China” in Charter 08, D4 indicated that this would naturally entail changes to the Constitution, and stated that Charter 08 contained demands not only for the amendment of the Constitution and other laws, but also for the implementation of the Constitution.

244.The Alliance had not specifically discussed whether every provision of Charter 08 was unequivocally supported by all. In its supporting role, the Alliance broadly endorsed the constitutional reform advocated by Charter 08. As to how the specific details would be implemented in practice, however, it would not necessarily have agreed with every individual point.

245.D4 stated that the Alliance regarded Charter 08 as a lawful, justifiable and reasonable call for constitutional reform, but its initiators were nevertheless sentenced to imprisonment, prompting the need to call for their release. As to the convictions of those who had proposed Charter 08, D4 contended that the Alliance was not a law-related institution, and approached the matter primarily from the perspective of legitimacy, human rights and reasonableness, rather than by way of a strict legal analysis.

246.D4 stated that few people concerned themselves with the Alliance’s promotion of awareness of the democracy or human rights activists in the Mainland. In the course of carrying out these actions, the Alliance never cared for any applause or support, nor did it aim to incite others to support the Alliance, but rather, the focus was on whether the matter was in itself justifiable and worth the effort. The Alliance did not exploit these issues to incite others, for more often than not, they were not exactly popular among the Hong Kong people.

247.Whilst being a staff member of the Alliance, D4 engaged largely with back office administrative support. It was her hope to work in the Mainland because she was then a fresh graduate and had limited knowledge about China. In 2010, D4 became a committee member of a non-governmental organization (NGO) focusing on labour rights in China. In the four years that followed, she traversed the whole country and lived with the migrant workers, left-behind children and pneumonoconiosis-affected workers. Her work experience in the Mainland had increasingly convinced her that “to end a dictatorship” would be to bring about a genuine end to the dictatorship that pervaded everyday life, to put an end to everyday class discrimination and abuse of power. To achieve this goal, education on rights awareness, cultivation of civil society organizations, civic action in practice as well as reform on the political system levels were of equal importance and each was indispensable. During this period, she continued to volunteer with the Alliance, travelling back and forth between Hong Kong and the Mainland.

248.In or around 2013, D4 was asked to run for a Standing Committee position in the Alliance. She struggled a great deal at the time, for the Alliance was a politically sensitive organization not favoured by the CCP. Her capacity as a committee member might affect her work in the Mainland. Subsequently on 29^th August 2013, the Alliance and the NGO with which D4 worked initiated a joint statement on human rights issues in China (D4-5), while the Alliance made the jointly signed declaration (D4-4) on 18^th September 2013. D4 took part in the latter’s demonstrations and assisted with research work. Against the background where advocating for social issues through an organized and open NGO model was no longer possible in the Mainland, and given D4’s decision to switch careers and become a barrister, and her hope of participating in China’s social and democracy movements in a more independent and flexible capacity, D4 left the NGO of her own accord, and became a member of the Alliance’s Standing Committee by the end of 2014.

249.The Alliance was registered pursuant to the Companies Ordinance and was, in law, a company limited by guarantee. The members of the Standing Committee were directors of the Alliance, while the members were members of the Alliance. The members included trade unions, political parties, councillors’ offices, students’ unions, religious groups, community organizations and organizations concerned with various other issues. After members elected the Standing Committee members at the Annual General Meeting, the latter elected from among themselves the Chairperson and Vice Chairpersons. Until its final year, the Alliance had around 20 Standing Committee members, none of whom were salaried, while its membership had for many years remained at more than 200 organizations. D4 herself stood for election to the Standing Committee as a representative of a group named “June 4^th Action”.

250.D4 stated that the members were the substantive entity of the Alliance, whereas the Standing Committee members were merely agents elected by the members and were responsible for its day-to-day executive duties. The Standing Committee members served one-year terms. The Standing Committee’s exercise of its power in leading the Alliance was strictly in accordance with the Company’s Memorandum and Articles of Association and the members’ authorisation. In addition to monthly meetings, there were also numerous team and departmental meetings. The resolutions of the Standing Committee were binding, but were subject to strict limitations and had to be implemented in accordance with the Memorandum and Articles of Association. The Alliance had operated throughout the years pursuant to the Memorandum and Articles of Association and the Companies Ordinance. After approval by the Standing Committee, its annual returns and financial statements would be uploaded to the websites of the Companies Registry and the Alliance for inspection by its members and the general public. During the charge period, the directing mind of the Alliance was the Standing Committee then in office.

251.D4 stated that the Alliance’s operation throughout the past three decades had been lawful and compliant, and that the objects of its establishment were set out in its Memorandum and Articles of Association[134], in which the Five Action Agendas were not mentioned. D4 contended that, although the Five Action Agendas did not appear in the company’s official documents, they were specific objectives developed from applying the Alliance’s objects to the actual circumstances, and were entirely consistent with what the company’s objects sought to achieve.

252.D4 confirmed that anyone elected as a Standing Committee member of the Alliance would necessarily become a director of the Alliance; if that person ceased to be a Standing Committee member, he or she would have to resign as a director of the Alliance at the appropriate time. During the period when D4 served as a Standing Committee member, the Alliance had acted in accordance with its Memorandum and Articles of Association, and the Five Action Agendas adopted by the Alliance did not contravene the objects set out in its Memorandum and Articles of Association. The things it did were the same.

253.D4 confirmed that the Standing Committee members of the Alliance were elected by a vote of the organization’s members. At the material period, D2, D3 and D4 were all elected as Standing Committee members, and no members had ever requested them to step down nor accused them of having breached their duties. Even where there were differing views, everyone was required to comply with the resolutions once they were passed.

254.D4 stated that the election platform[135] she put forward when running for the Standing Committee in 2019 represented her personal views on the Alliance’s positioning and development. The election took place during the Anti-ELAB movement, and below was D4’s response towards the rather intense Hong Kong-Chinese Mainland conflict in society: “In my opinion, what the Alliance can do is to persist in its role of facilitating communication, revealing the truth as well as building bridges and knocking down walls, so that the people in the Mainland and Hong Kong can truly connect with and support one another in their common pursuit of democracy, rather than falling into the regime’s ploy of dividing them into two groups that are hostile to each other.” “Facilitating communication” means mediating and easing tensions between Hong Kong and the Mainland; “building bridges and knocking down walls” means providing a bridge for communication, enabling people on both sides to see, understand and get to know each other, and breaking down the walls built through prejudice and misunderstanding, rather than, as alleged by the prosecution, inciting hatred or inciting secession. If elected, she would promote these initiatives within the Alliance. She was successfully elected as a Standing Committee member that year.

255.As for D4’s platform[136] on which she stood for the Standing Committee election in 2020, the NSL had by then been passed and implemented. She believed that there was an even greater need for the Alliance to uphold the boundaries and principles of a civil society. She understood the Alliance’s Objects or Action Agendas to be a mere bottom line of seeking common ground while reserving differences, rather than actively promoting, popularising or advocating any propositions.

256.Where the platform stated, “[t]his past year, Hong Kong was turned upside down. In particular, after the passing of the NSL, fear spread, and everyone began to gauge where the intangible red line lay. Some organizations have disbanded; others have changed course, all in an attempt to avoid falling foul of the ‘law’ ”[137], D4 explained that “this past year” referred to 2019, and here in this paragraph she meant she disagreed with those who had decided to disband their organizations or change their course after the NSL had come into force. She would insist on standing her ground, for the Alliance’s Action Agendas were merely an articulation of the most fundamental and non-negotiable principles of Hong Kong society. If elected, she hoped that the Alliance would neither dissolve nor “change its course”, and that it would not seek to “avoid falling foul of the law”.

257.D4 in §§3 and 4[138] of her platform clearly indicated that even after the NSL had come into effect, the Alliance would make no concession of their pursuits under the Five Action Agendas, and confirmed that the Five Action Agendas were primarily directed at what happened in the Mainland.

258.As to the passage in the election platform stating “but historically, which democracy movement confronting a dictatorship has ever been tolerated by a dictatorship or been permitted to operate ‘lawfully’? ...whether the Alliance’s Action Agendas and work can comply with the NSL is never a legal issue, nor is it ever important”[139], D4 stated that throughout history, many democratic movements had been suppressed by the regimes in power through various legal means. The Alliance expected that, under a dictatorship, the State power would seek to suppress it through legal means, and the political assessment was that the State power would use the law to “go after” the Alliance.

259.As to the statement in the platform that “the Alliance’s position has always been clear: what we resist, what we seek to subvert, and what we seek to end is the CCP’s one-party dictatorship, not merely the puppet government of Hong Kong”[140], D4 confirmed that “resist”, “subvert” and “end” all carried similar meanings. D4 contended that “subvert” did not necessarily mean reversing something that was lawful. It could also mean subverting an unconstitutional phenomenon and an unlawful state of affairs, thereby putting things right. It was not directly equivalent to “overthrow”, but rather, to reverse a state of dictatorship.

260.After becoming a Standing Committee member of the Alliance, D4 continued, in her personal capacity, to travel to the Mainland to participate in social movements there. She would not engage in any activities in her official capacity as an NGO staff member or in the name of the Alliance. As to whether she had ever advocated or expressed the Action Agenda of “ending one-party dictatorship” in the Mainland, D4 stated she did not necessarily use those exact six Chinese characters, but that she would discuss the ideology with friends, and that the actions they took were also putting that ideology into practice. In order to maintain her work in the Mainland, D4 did not want to attract too much attention and therefore had never placed herself at the forefront of the Alliance.

261.In late 2015, D4 began serving as the Vice Chairperson of the Alliance. Apart from speaking in that capacity in the candlelight vigils, she mainly undertook inconspicuous behind-the-scene tasks in her day-to-day work, such as data research and report preparation. She rarely gave public speeches or attended interviews, and tried, as much as possible, to avoid putting herself at the forefront. It was not until around the time the NSL came into effect in 2020 when all the other members were arrested that D4 was forced to break with this practice.

262.Since D4 assumed the role of Standing Committee member of the Alliance, the organization’s structure had remained unchanged. In addition to the Chairperson, Vice Chairpersons and Secretary, there were seven departments: the Executive Secretariat, Finance Department, Organization Department, Education and Youth Department, Communications and Publications Department, Overseas Liaison Department, and Rights Defence Department. Some Standing Committee members were responsible for the work of several departments. D4 referred to the Alliance’s organization chart[141] for 2014/15 and explained that the names with an asterisk (*) were designated spokespersons. When she first became a Standing Committee member, she participated in the Rights Defence Department (which was primarily responsible for following up on, supporting, and expressing solidarity with human rights and pro-democracy movements in the Mainland, as well as participating in international campaigns and initiatives or preparing reports relating to the UN International Covenants on Human Rights), the Education and Youth Department (responsible for educational work such as organizing talks and school activities, preparing teaching materials, and funding theatrical performances), and the Communications and Publications Department (responsible for communications and publications, including the HK Alliance Dispatch, setting up street booths, and data research and compilation for the June 4^th Museum). In terms of her specific work, D4 would approach matters from the perspective of the Rights Defence Department.

263.Whilst working in the Rights Defence Department, D4 prepared in 2018 a Universal Periodic Review Submission (“UPR Submission – China 2018”)[142] under the United Nations’ human rights review mechanism. Upon approval by the Standing Committee, it was submitted by the Alliance to the UN. At the time, D4 was a Vice Chairperson of the Alliance, and had drafted the submission based on her understanding of the situation in the Mainland. Such submission would outline issues of long-standing concern to the Alliance, identify the general trends it observed and offer specific recommendations to the Chinese government, with a view to enabling the international community to understand how human rights issues in China could be improved or resolved. D4 stated that, judging by this objective, submissions of this kind did contain an element of inciting others to engage in certain acts, with the Chinese government being the principal target of such incitement. The submission provided a broad overview of the Alliance’s stance, and put forward recommendations to the Chinese government on issues of greatest concern to the Alliance, such as calling for the abolition of the system of “residential surveillance at a designated location”.

264.The content of this submission fell into four categories: repression through judicial means; extra-legal repression; repression of civil society organizations; and government accountability. D4 stated that the situations described in the submission were based on analysis of specific cases and legal provisions, with targeted recommendations proposed accordingly. The adverse conditions cited in the Alliance’s activity statements were real issues that needed addressing, not means used by the Alliance for incitement.

265.D4 stated that the Alliance had raised numerous specific methods and means to achieve the Five Action Agendas including “end one-party dictatorship”. The 32 recommendations set out in this submission were intermediate targets or steps towards the long-term goal of “ending one-party dictatorship”. These recommendations fell into five categories: (1) amending the law; (2) establishing mechanism to safeguard human rights; (3) joining international human rights supervisory mechanisms; (4) holding into account and conducting open investigations of officials and government departments that infringe upon human rights; (5) ceasing all unlawful acts. All these means sought to bring an end to one-party dictatorship through the rule of law and legal means, and never involved calling for or inciting others to achieve the Alliance’s objectives through unlawful means.

266.D4 stated that similar recommendations could be found in the videos and footage admitted into court evidence. For instance, in the protest statement[143] dated 8^th November 2012, the Alliance put forward 18 recommendations, including the implementation of rights guaranteed under the Constitution and regulating the conduct of political parties under the Constitution and the law. This statement was addressed by the Alliance to the 18^th National Congress of the CCP, demonstrating that the Alliance had not refrained from communicating with the CCP. Furthermore, in the joint statement[144] issued by the Alliance in connection with the protest on 4^th March 2018 against the proposed constitutional amendment, the Alliance did not call on people to overthrow or violate the Constitution; rather, it called on them to uphold and defend their rights under the Constitution. These statements showed that, over the years, the means employed by the Alliance for achieving “ending one-party dictatorship” had been proposals such as calling on everyone to uphold the Constitution, demanding that the Constitution be fully implemented, or proposing amendments to the Constitution. D4 contended that the Alliance’s appeals over the years could hardly be regarded as unlawful means, let alone a violation of the Constitution. The Alliance could not expect the leaders of the CCP to accept its proposals in full; the only source of strength on which it could rely was the support and will of the people. It therefore explained its observations and recommendations to the general public. For instance, around the time of its participation in the UPR, the Alliance explained its recommendations in the HK Alliance Dispatch. In this connection, D4 produced an article[145] written by her and published in Issue 117 of the HK Alliance Dispatch in April 2018, in which she explained the content of the Alliance’s submission.

267.Issue 117 of the HK Alliance Dispatch contained an article[146] written by TSOI Yiu-cheong in his capacity as Vice Chairperson of the Alliance. D4 stated that the article represented the Alliance’s stance on the 2018 constitutional amendments. The Alliance considered that the constitutional amendments made in March 2018 themselves constituted a subversion of the then-existing constitutional system and establishment. The Alliance’s stance was that the Constitution should be amended regardless of whether one was referring to the version before or after the 2018 amendments; its views on constitutional amendment applied equally to the Constitution both before and after the amendments.

268.The article stated, “some say that, even if Article 1 of the Constitution were not amended, leadership by the CCP already exists as a matter of fact; that is true—the existence of ‘one-party dictatorship’ is a reality, but I consider that writing it into the Constitution and thereby further legitimising it is even more unacceptable.”  As to whether this statement equated “CCP leadership” with “one-party dictatorship”, D4 stated that she had never had any discussions with TSOI Yiu-cheong. Based on her understanding of the words used, “leadership” in the article did not mean the same thing as “dictatorship”. “Some say” referred to comments made by others, whereas the words following “that is true” indicated the Alliance’s stance: namely, that the CCP exercised not merely “leadership” but “one-party dictatorship”, and that the constitutional amendments were an attempt to legitimise the reality of “one-party dictatorship”.

269.D4 added that Charter 08 advocated the establishment of a constitutional court and the upholding the authority of the Constitution[147], thereby giving effect to the Constitution in practice, which was also a direction that the Alliance had consistently supported. D4 stated that the Charter 08 movement had never ceased, and that in 2018 the Alliance had on numerous occasions promoted the Charter 08 movement in Hong Kong and supported those in the Mainland in promoting Charter 08. The Alliance’s stance was that the propositions in Charter 08 were rights guaranteed under the Constitution, and that supporting Charter 08 should not give rise to any criminal liability. The Alliance supported those in the Mainland in their pursuit of democracy. Pursuing democracy had always come with risks in countries under dictatorship; the initiative or choice lay with those in the Mainland. The Alliance provided support but could not make the decision on their behalf. As to whether their actions involved risks, or how much risk they were prepared to bear, that was their own choice. D4 agreed that the conduct in question carried a risk of arrest in the Mainland.

270.Under the Alliance’s spokesperson system, the Chairperson and Vice Chairpersons were its spokespersons by default. In the Alliance’s publications or activities, articles written or speeches made in the name of the Chairperson and Vice Chairpersons would generally represent the Alliance’s stance, unless the context or content expressly indicated that the views were personal. Where, however, they merely signed their names without stating their identities as Chairperson or Vice Chairpersons, or where a Standing Committee member wrote an article or made a speech in that capacity, this would not necessarily reflect the Alliance’s stance; it depended on the specific content. If the subject matter concerned the Alliance’s activities, then it represented the Alliance’s stance. The Alliance did not state in respect of each individual article whether or not it represented its stance.

271.D4 stated that the HK Alliance Dispatch, which the Alliance had published since 1989, was a complimentary publication. It was distributed in different formats, from printed editions in its earlier years to electronic editions at a later stage. The Alliance posted the HK Alliance Dispatch to its supporters, distributed it at activities and street booths, made it freely available at bookshops and other public venues, and uploaded it to the Alliance’s website for public access. Overall, the HK Alliance Dispatch provided an open platform for people to learn about developments in and issues concerning democracy in China. Some articles were written by the Alliance’s Standing Committee members, staff or volunteers, but many more were contributed by civil society groups, experts, academics, current affairs commentators, Mainland activists, lawyers and even readers who were in a friendly relationship with the Alliance. The views expressed were therefore not confined to those of the Alliance, nor was the publication limited to promoting the Alliance’s own propositions and stance. The HK Alliance Dispatch was not a periodical published at regular intervals: it was published every few months, with approximately three to four issues per year, and it was handled by the Communications and Publications Department.

272.According to D4, the articles in HK Alliance Dispatch that explained the Alliance’s stance included:

(1)  Issue 105 (April 2015): In her capacity as the Alliance’s Standing Committee member, D4 wrote an article titled ‘Modern-day nine familial exterminations’[148], introducing a “Spring Festival Reunion Action” in which the Alliance took part. Through activities such as handing out spring festival couplets, they called on the Chinese government to cease house arrest, torture and political persecution[149]. The article represented the stance of the Alliance. D4 contended she had a legitimate purpose in writing the article, contrary to the prosecution’s claim that this was to stir up hatred against the CCP on the pretext of democracy. Under the major theme of ending one-party dictatorship, the Alliance would propose specific operational direction, such as launching joint signature campaign, setting up street booths and putting up spring festival couplets. The article called on everyone to take part in the joint signature campaign, which could be interpreted as an appeal to the NPC; this could not be described as an act to incite subversion of State power, much less an attempt to vilify the CCP. D4 subsequently added that the event had already ended by the time the article was published. The main purpose of the article was therefore to introduce the event and allow readers to learn about the stories of the people concerned.

As for the rather sensational article title with the term “nine familial exterminations”, D4 stated that this was a matter of literary choice and reflected what she considered to be a real problem. The title served to explain the issue at hand simply and clearly. The article referred to the actual state of affairs; it did not say that the individuals in question had actually been killed. This was a matter of wording. D4 emphasised that the article was not a legal document.

(2)  Issue 106 (September 2015): D4 wrote an article[150] in her capacity as the Alliance’s Standing Committee member, calling on the readers to support the Mainland arrestees in connection with the Umbrella Movement. The article introduced activities organized by the Alliance, and represented the stance of the Alliance.

(3)  Issue 108 (January 2016): D4 wrote an article[151] in her capacity as Vice Chairperson of the Alliance, explaining the theme of the Alliance for that year. The article essentially reiterated the Five Action Agendas. D4 contended that the article did not incite anyone to engage in any particular conduct, but merely made a general call for continued support for the Alliance.

The article stated: “The hand of dictatorship has long extended to Hong Kong. Whether it is Hong Kong’s electoral system, academic freedom, freedom of the press, or the security of person of Hong Kong people – the geographical border, the dictator’s promises can no longer protect us. We can only resist, and standing together with the protestors in the Mainland is our best safeguard. What dictators fear most is their own people; only the people of China can overthrow the CCP.” It meant that Hong Kong and the Mainland should confront the dictatorship together.

As for the foregoing statement, “only the people of China can overthrow the CCP”, D4 stated this was a hypothetical scenario. If the CCP were to be overthrown, this was in fact the only way in which it could happen. Therefore, the CCP feared its people most. The statement was not intended to incite anyone to do anything.

As to why the term “overthrow” was used instead of “confront”, D4 stated that “overthrow” represented an outcome feared most deeply by the CCP. Dictators feared their own people because the latter would be capable of “overthrowing” them. The article was not saying that the Alliance was about to do anything. Rather, it explained that dictators would be afraid because there was the possibility of being overthrown by the people. If it was merely a matter of “confrontation”, they might not be in such deep fear.

(4)  Issue 113 (March 2017): D3 wrote an article in his capacity as Chairperson of the Alliance titled “How to end one-party dictatorship”[152] which echoed the Alliance’s theme of “Rehabilitate June 4^th End dictatorship” that year. The article explained that there were only three methods to end one-party dictatorship: (1) Self-reform by the leader; (2) Overthrowing the dictatorship by way of violent revolution; and (3) Peaceful resistance from civil society. D4 stated only the third method was the one that the Alliance had been diligently practising for more than 30 years. The section of the article titled “Arduous and persistent non-violent resistance” specifically discussed the modes of conduct either supported or undertaken by the Alliance, none of which constituted an unlawful means. As to the phrase “resistance within and outside the legal system”, the word “outside” did not mean “unlawful”; rather, it referred to methods outside the legal system, such as human rights lawyers in the Mainland writing articles to disclose the circumstances in which they were unable to meet with their clients.

As to whether the non-violent resistance referred to in the article included conduct that would be defined as unlawful in the Mainland, D4 stated that the Alliance’s focus was not on how the government defined the conduct, but on the nature of the conduct themselves. Petitioning to the authorities, holding assemblies, marches and demonstrations were not criminal by nature. The Alliance could only promote peaceful resistance by civil society. Whether those in power would suppress such resistance with the law was beyond its control. It could only determine the principles it would itself abide by and the methods it employed. The article mentioned forms of peaceful resistance including marches, assemblies and vox populi, and was not limited to the Chinese Mainland.

(5)  Issue 114 (September 2017): D4 wrote an article[153] in her capacity as Vice Chairperson of the Alliance in which activists in the Mainland were introduced. D4 stated that as of 2016 and 2017, the Alliance was still promoting Charter 08 and campaigning for the release of LIU Xiaobo. This had been a long-term concern and an ongoing endeavour[154].

LIU Xiaobo died in custody on 13^th July 2017. The Alliance organized a series of actions in response and continued thereafter to organize related activities, including a solidarity event on 8^th December 2018 at which a statement[155] was issued. D4 confirmed that in 2018 and during the material period, the Alliance continued to support Charter 08.

(6)  Issue 119 (November 2018): D3, Emily LAU Wai-hing and the HKCTU each wrote an article[156] explaining the activities and work undertaken during their trip to Geneva that year, and seeking public support for the direction of reform advocated by the Alliance. D3 wrote the article in his capacity as the Chairperson of the Alliance, and its content represented the stance of the Alliance. The same, however, did not necessarily apply to the other two articles.

(7)  Issue 121 (April 2019): D4 wrote an article[157] under the pseudonym “Ching”, explaining the various forms of democracy movements that had taken place in China, including the Formation of Independent Political Parties, the Charter Movements, the New Citizens’ Movement, Grassroot Democracy and the Rights Defence Movement. D4 stated that, in addition to supporting constitutional amendment, the Alliance also supported different forms of democracy movements referred to in the article. This had been the Alliance’s long-standing strategy, and it was also the case during the charge period.

Under the heading “The Charter Movements”, the article referred to two Charter movements initiated by Mainland pro-democracy activists. D4 stated that the constitutional amendment movement was a long-term movement and part of the broader democracy movement. In addition to large-scale constitutional amendment movements, the Alliance would also support individual or small-scale constitutional amendment initiatives, such as the Christmas card sending campaign[158] in 2020.

273.D4 contended that her primary purpose in writing for the HK Alliance Dispatch was not to incite any particular conduct, but to enable Hong Kong people to understand the stories of Mainland activists. Such efforts were also pursued through talks, small-group activities, publicity materials, leaflets, bookmarks and other means. The Alliance actively told these stories not to incite hatred, but to promote understanding between people in the Mainland and Hong Kong. For example, at a talk on 12^th April 2019[159], D4 spoke about the stories of certain activists. D4 stated that the Alliance had supported the Chinese democracy movement for many years, and what it supported were specific people and courses. People were the very substance of democracy movement: caring for and supporting people, and building connections between people, would always be the first step towards ending one-party dictatorship and building democracy. What the Alliance called on people to do did not involve unlawful means.

274.As to whether the Alliance during the material period advocated constitutional amendment, D4 stated that it did, but that was not all. The logic of calling any other methods other than constitutional amendment illegal would be quite “out of touch” with the political reality of China, because within the democracy movement as a whole, constitutional amendment was the least tolerated course of action. As to whether, during the material period, the methods by which the Alliance promoted democracy movement other than constitutional amendment sought to change the basic/fundamental system of “leadership by the CCP” of the state, D4 stated she was referring to a democratic transition rather than the basic/fundamental system in the legal sense. The Alliance did not formulate its objectives by reference to the Constitution. Its objectives were to “end one-party dictatorship” and to “construct a democratic China”. Whether in the rights defence movements or the protests supported by the Alliance, all such efforts were undertaken within the framework of advancing, in the long term, the objectives of “ending one-party dictatorship” and “constructing a democratic China”. The same applied to the campaign to rehabilitate June 4^th.

275.D4 stated that “Rehabilitation of June 4^th” had been the Alliance’s annual themes for many years, and that there had been a number of explanatory articles[160] on the subject. The Alliance had consistently called for a process conducted under the rule of law to hold unrestrained dictatorial power into account. “Rehabilitation of June 4^th” was therefore itself one of the objectives pursued under “ending one-party dictatorship”. Among the Five Action Agendas, the highest-level objective was “constructing a democratic China”, while the other Agendas formed part of its substance.

276.As the circulation of the HK Alliance Dispatch was limited, the annual June 4^th candlelight vigil was the Alliance’s most significant expression of its stance. D4 stated that the Alliance had only very limited resources, and relied entirely on donations from members of the public. It did not have sufficient funds to hire professional writers. Each year, the Standing Committee would first decide who would read out the official declaration and eulogy at the June 4^th Assembly. The drafts by designated speakers would be submitted to the Standing Committee for approval prior to being read out in the vigil. The official declaration would usually be read out by the Chairperson or the Vice Chairpersons. Only the official declaration and eulogy would be subject to approval by the Standing Committee, other on-stage speeches by other speakers did not have to go through this procedure.

277.The official declaration[161] for the June 4^th Assembly in 2016 was written and read by D4. D4 stated that the declaration addressed the issues of responsibility and choice. The Alliance was firmly convinced that what it was doing was in no way a crime and did not constitute criminal conduct, and that it would persevere. As to whether the use of more negative descriptions in the declaration such as “the dagger is finally revealed” and “executioner” placed the CCP in an adversarial position or regarded it as an enemy, D4 stated that the dictatorship was indeed the object of the Alliance’s resistance, but the Alliance had never used words like “enemy”. What the Alliance opposed was a system. D4 agreed that the Alliance and the CCP could be said to be in opposition to each other, but remarked that the declaration did not intend to portray the CCP as an object of hatred. Its principal message was to stand together with those Mainland protestors; it was not about whom to hate, but about whom to show concern and support.

278.D4 stated that the declaration as a whole was an appeal to the general public to assume their civic responsibility and do what was right. Its purpose was to state the Alliance’s stance, explain what the Alliance stood for and why it did so. It was a commitment made to the public based on the Alliance’s ideologies and principles. The declaration could be said to have the effect of encouraging members of the public to walk alongside the Alliance, but that was not its primary purpose. Its purpose was to encourage people to assume responsibility and not to ignore what had happened on June 4^th, which was a civic responsibility.

279.The official declaration[162]of the June 4^th Assembly in 2018 was also written and read by D4. D4 stated that the declaration explained the Alliance’s stance on its Agenda of “ending one-party dictatorship”. Following the constitutional amendments in 2018, voices had begun to argue that this Agenda was unconstitutional, crossed a red line, and had to be abandoned, D4 therefore wrote the declaration to refute those arguments and explain to the public why the Alliance could not, and would not, make any concessions whatsoever on its stance regarding “ending one-party dictatorship”. D4 indicated that “one-party dictatorship” was the current reality in China, which the Alliance considered completely unreasonable and had to come to an end, and that “ending one-party dictatorship” was simply an ordinary pursuit of democracy.

280.As to the passage in the declaration which read, “What is ‘end one-party dictatorship’ about? It is simply a demand for party alternation, returning the power to the people, genuine democracy”, and whether “ending one-party dictatorship” was a demand for party alternation, D4 said that democracy allowed for party alternation, and that which political party came to power was a choice for the people. It was not for the Alliance to determine which political party should replace another, but there had to be a possibility of party alternation. Once the goal of “ending one-party dictatorship” had been achieved, there could be party alternation. D4 agreed that party alternation was an outcome that the Alliance wished to see, rather than the perpetual rule by the CCP.

281.D4 stated that the declaration emphasised that the pursuit of democracy was not a proposition unique to the Alliance, but an ideal for which innumerable people in Hong Kong and China had made sacrifices. A system of “one-party dictatorship”, in which power was unrestricted, had been the source of countless tragedies throughout history. To halt this tragic cycle, the Alliance sought to end one-party dictatorship. Opposition from the dictators had never been a reason to give up or retreat; rather, it was a difficulty that had been anticipated from the outset and would have to be overcome. In 2018, the Alliance was precisely facing such pressure from those in power. At the time, there were voices suggesting that continuing to call for “ending one-party dictatorship” might result in being unable to stand for election to the LegCo and might lead to disqualification. The public was concerned about whether the Alliance would back down in the face of such pressure. D4 therefore placed particular emphasis in the declaration on assuring the public that the Alliance would never abandon its proposition of “ending one-party dictatorship” simply because those in power disliked it. In 2018, there were voices in the community saying that there was a problem with the Alliance’s Agenda of “ending one-party dictatorship” and that it should no longer chant the slogan. TAM Yiu-chung and others with positions or standing had said at the time that the Action Agenda should no longer be advocated. There was discussion at the time about the implications of the constitutional amendments, with some saying that the Alliance could no longer retain this Action Agenda. The purpose of the declaration was therefore to make a commitment to the public, explaining what the Alliance intended to do.

282.As to the phrase in the declaration, “the final avalanche draws its strength from every snowflake”, D4 stated that the “snowflakes” referred to the Alliance’s supporters. The declaration not only addressed what the Alliance itself should do, but also encouraged members of the public to stand together with the Alliance and take action. “The final avalanche” referred to the Alliance’s ultimate goal of ending the state of one-party dictatorship. This was consistent with the Alliance’s longstanding approach of “building up, little by little, the consensus and strength of civil society, and ultimately achieving democratic transition.”  Thus, every snowflake and small action mattered.

283.As to the reference to “we cannot give everyone a roadmap” in the declaration, D4 stated that the Alliance candidly acknowledged its limitations: it could not provide the public with a roadmap or timetable, and could only provide broad principles and a direction, while undertaking to continue working in that direction. If the Alliance had wanted to incite hatred or hostile sentiments, it would not have made remarks that undermined its own standing. The Alliance of course hoped that people would support its ideologies, but its approach was to act first itself and then act together with the public, rather than tell people to do things without knowing what they were for. D4 confirmed that the Alliance raised funds at the June 4^th vigils and appealed to the public for support.

284.The eulogy[163] at the June 4^th Assembly in 2019 was again written and read by D4. D4 contended that the eulogy constituted a fair comment and an exercise of freedom of speech, expressing the Alliance’s views and stance on the 1989 pro-democracy movement.

285.D4 stated that the purpose of establishing the June 4^th Museum was to safeguard and pass on the truth, and to provide and preserve facts and information, rather than to propagate or advocate any particular propositions; it simply recounted the facts and disseminated factual information and historical records. The collection, organization and preservation of materials relating to the democracy movements in China, in particular the 1989 pro-democracy movement and matters relating to June 4^th, had always been a core undertaking of the Alliance, and indeed formed part of the very foundation on which it was built. In its early years, the Alliance carried out this work under the name “China Democratic Movements Information Centre”; it later did so through the June 4^th Museum.

286.D4 stated that the June 4^th Museum collected materials to share with the public, because a culture of public discussion was essential to sustaining a democratic society. At the outset, the principal means of sharing them was through publications, including Newspaper Front Pages on the Democratic Movement of China ’89, published in October 1989 (D4-18); Witness Reports on the Democratic Movement of China ’89, published in May 1990 (D4-19); and Twenty years–dead and living dim and draw apart: The Emotional Journeys of the Families of the June 4^th Victims, published in June 2009 (D4-20). During the charge period, all three books were sold at the June 4^th Museum and were an important part of its collection. As historical materials, these books served to preserve the truth and historical records, as well as to disseminate factual information. They were also important reference books for D4.

287.Before the pandemic in 2020, the June 4^th Museum was open every day except Mondays. The new Museum in Mong Kok opened before June 4^th in 2019. It subsequently encountered the social movement and the pandemic, and was shut down by the National Security Department soon afterwards. Consequently, it was not open to the public for very long. The Museum was briefly reopened during the pandemic in 2020. It was closed for renovation in early 2021 and reopened shortly before June 4^th, but was closed again about three days later after the Food and Environmental Hygiene Department (“FEHD”) accused it of not holding an entertainment license. The June 4^th Museum was also the Alliance’s office, serving as its workplace and registered office. Even when it was not open to the public, staff worked there.

288.D4 stated that the physical June 4^th Museum was a natural development following the Alliance’s long-standing work of collecting, organizing and disseminating historical materials. It provided a place where all the relevant materials could be found, served as an additional channel for those materials to reach members of the public and made known to people that such a space was available for their use and exploration. The June 4^th Museum was a venue for displaying historical artefacts collected by the Alliance over the years. Its purpose was not to incite or advocate that others join the Alliance or to support its propositions. The June 4^th Museum also distributed and sold souvenirs to the public and conducted other activities.

289.As to a publicity leaflet[164] from the June 4^th Museum titled At the Forefront of Anti-totalitarianism — From the 1989 Democracy Movement to the Anti-Extradition Movement, the text in it appeared to have nothing to do with preserving historical facts, but instead set out the Alliance’s objectives in its resistance and explained the direction in which the Alliance was pursuing its resistance. D4 contended that the establishment of a memorial museum had to be underpinned by certain ideologies, but this did not mean that its purpose was to incite any particular propositions. The title juxtaposed Anti-ELAB with the 1989 movement, and its description incorporated the Alliance’s stance with a view to presenting the history of Chinese democratic movements. As to the content of the leaflet, which appeared not to be a record of historical events[165], D4 stated that it introduced an exhibition comparing Anti-ELAB with the June 4^th Incident, and sought to draw greater public attention to June 4^th by addressing an issue that was more immediate to the public. D4 pointed out that the leaflet was not the exhibition itself, and publicity materials unavoidably contained the Alliance’s stance and narrative, but it could not be said that the June 4^th Museum, on the basis of the leaflet alone, was not presenting historical events.

290.As to the publicity leaflets and items for sale at the June 4^th Museum, D4 made three clarifications: (1) The June 4^th Museum embodied the Alliance’s ideologies and propositions. Its documents, leaflets and activities reflected the Alliance’s ideologies and principles, but this did not mean that the Museum had been established for the purpose of advocating or spreading its ideologies. (2) The Museum was not established for fundraising, but without fundraising it simply could not be operated. The establishment of the Museum was not for the purpose of inciting others to do anything unlawful. (3) The items seized from the Museum and shown by the prosecution, such as postcards, leaflets, reports and documents of other organizations, were merely peripheral products and were not the principal items displayed at the Museum. The Museum’s principal purpose of work could not be determined on that basis.

291.The June 4^th Museum was approximately 1,000 square feet in size. The office area was not open to the public, while the public exhibition area occupied around 800 to 900 square feet. D4 stated that the sustainability of the Museum was a major concern and that she had doubts as to whether there were sufficient resources for it to continue its operation. Consequently, the Alliance had endeavoured to digitalise its materials, producing June 4^th USB sticks[166] to facilitate the circulation of information, messages and historical materials. These USB sticks had all along been kept at the June 4^th Museum and sold to the public, and were also often sold to members of the public at events for a nominal price.

292.Before 1^st July 2020, the Alliance saw that the situation was getting tense and considered that the June 4^th Museum and the Alliance itself might be shut down. It therefore began actively preparing an online June 4^th Museum, with the plan of putting the contents of the physical museum online and operating it independently of the Alliance. The objective was to preserve historical materials, rather than to promote the Alliance. The online museum was completed one month before all members of the Standing Committee were arrested. The June 4 Memory & Human Rights Museum was officially launched on 4^th August 2021[167] and, from the day of its opening, operated independently of the Alliance under an independent curatorial team, although the preparatory work had been undertaken by the Alliance.

293.D4 played in court a video[168] of the June 4^th Assembly in 2018; the rundown of which was broadly as described in the programme booklet. The video showed that, at one point, three people spoke on stage. D4 stated that two of them were not members of the Alliance, while she could not be certain about the third. They had been invited by the Alliance to speak on stage, and their speeches were broadly expected to relate to the commemoration of June 4^th. No speaking notes had been provided in advance, nor had the content of their speeches been coordinated with the Alliance. The Alliance was unaware of what they would say. Provided they were willing to speak, they were free to say whatever they wished, and were even permitted to promote events that were not organized by the Alliance. D4 stated that their speeches did not represent the Alliance’s stance.

294.D4 stated that the candlelight vigils centred primarily on the commemoration of the June 4^th Incident, and therefore the commemorative rituals accounted for a substantial portion—nearly half—of the event. The most important speeches at the vigils would be those delivered annually by the Tiananmen Mothers (with the exception of 2014), followed by speeches from those directly affected or the eyewitnesses. At each year’s assembly, the Alliance sought to include elements linked to the current democratic movements, such as inviting family members of prisoners of conscience from the Mainland to speak, and having Hong Kong social movement or student groups share their views. The event concluded with the reading of the official declaration, which served as a declaration through which the Alliance, as the organizer, expressed its own stance.

295.The official declaration was placed at the very end of the programme every year because the Alliance understood that many members of the public might not stay until the end. They had come to commemorate June 4^th, and the priorities were to complete the commemorative rituals and hear the words of the Tiananmen Mothers; whether or not they heard the Alliance’s declaration was of secondary importance. D4 went on to say that if the June 4^th Assemblies had been intended to promote or publicise the Alliance, or to advocate, spread or incite some hidden agenda or criminal conduct, the rundown of the Assembly would not have been designed in such a manner.

296.D4 stated that, long before she had joined, the Alliance had been uploading edited footage of June 4^th Assemblies to YouTube every year, and that footage from 1990 was also available on YouTube. Footage could not be uploaded directly to the Alliance’s website so only YouTube links were embedded there. Whatever the invited speakers said would be posted online verbatim without any editing, even though the Alliance did not necessarily endorse the views expressed in their speeches. This was because June 4^th was part of the public memory and the Alliance should not, nor could it, monopolise the discourse on the subject. As the organizer, the Alliance’s positioning was to facilitate public remembrance; the presence of diverse voices was a sign of the Assemblies’ success.

297.Furthermore, every year at the candlelight vigil, a number of civil society groups set up booths at the entrances and exits of Victoria Park to express their different views on the June 4^th Incident. The Alliance generally welcomed all comers, because it believed that democracy should be characterised by a cacophony of diverse voices.

298.D4 subsequently played in court a video of the June 4^th Assembly in 2019[169]. This was the last June 4^th Assembly organized by the Alliance. In addition to the rundown described in the programme booklet, there was also a reading of a letter from a prisoner of conscience in the Mainland. The video was uploaded to the Alliance’s YouTube channel, and the Alliance’s Facebook account also reposted a link to the video. D4 stated that the theme of the Assembly that year was “The People Will Not Forget”, and that the Assembly therefore placed greater emphasis on recounting what had happened at the time.

299.D4 disagreed with the prosecution allegation that the relevant speeches in the following ten video clips constituted acts of incitement to subversion. She stated that the clips were made under different context with different purposes and could not be treated as the same:

(1)  The Fight against Torture promotional vehicle on International Human Rights Day on 10^th December 2020[170]: At the promotional vehicle, the Alliance and other community groups called for public concern on the issue of torture and urged people to participate in a joint signature campaign, and the signatures collected would be forwarded to the UN High Commissioner for Human Rights. D2, D3 and D4 were present. D4 claimed that the speech made that day was not an incitement to anything but just part of the Human Rights Day promotional activities.

(2)  Meeting with reporters by the Alliance in Victoria Park on 6^th February 2021[171]: After the sudden termination of contract for a Chinese New Year flower market stall, the Alliance met the reporters with D2, D4 and others present. D4 stated that she was explaining the stance of the Alliance at that time, and the only act she had called on the public to do was to buy flowers. The Alliance spread their ideologies and messages by selling flowers at the Chinese New Year flower market stall, pairing each flower language attached with a story of a Prisoner of Conscience. The only action which the Alliance called on the public to take was to buy flowers. So long as the selling of flowers did not constitute an unlawful means, the activity had nothing to do with incitement to subversion.

D4 stated that her speech at Item 25 was an explanation of the meaning behind the flowers bought by the public. She employed the language of political ideology to call on the public to buy flowers. She further pointed out that the Alliance’s motive in bidding for a Chinese New Year flower market stall was to promote its messages and ideologies.

(3)  Press interview at the June 4^th Museum on 22^nd or 23^rd February 2021[172]: D4 pointed out that the clip showed only a brief conversation, which was taken out of context, and depicted her perseverance. She was expressing her own stance rather than inciting others to commit any acts.

(4)  The joint demonstration organized by the Alliance and LSD on 15^th April 2021[173]: D4 claimed that when she spoke at the demonstration venue, reporters were probably present. The purpose of the demonstration that day or what they sought to call on others to do included demands for ending one-party dictatorship, universal suffrage, reversing verdict of 1989 pro-democracy movement, ceasing repression of political dissidents, repealing the NSL, releasing political prisoners, etc, none of which amounted to unlawful means.

(5)  Cleansing of the “Pillar of Shame” by the Alliance at the University of Hong Kong on 2^nd May 2021[174]: D4 said the cleansing of the “Pillar of Shame” was an annual activity carried out by the Alliance to prevent the statue, which was displayed outdoors, from rusting and also to promote the June 4^th memorial activities in the same year. That year, the Alliance had no idea whether a Letter of No Objection would be issued for the June 4^th Assembly, and they could only generally call for commemoration of June 4^th. That was not an unlawful act. Her call on the public to insist in exercising their inherent rights was a response to the white terror which had then emerged under the NSL, and it did not constitute an unlawful means. Both D3 and D4 chanted the slogan of the Five Action Agendas on that day.

(6)  The Alliance’s street booth in Mong Kok on 9^th May 2021, Mother’s Day[175]: On Mother’s Day each year, the Alliance would set up street booths or organize other activities to remind the public not to forget the Tiananmen Mothers. Her speech that day mainly called on the public to do certain specific acts, for example, lighting candles on the night of 4^th June, participating in the “One person, One photo” campaign, helping out in the street booths, etc. These did not amount to incitement to any unlawful means. It could be seen from the clip that she also responded to questions asked by the reporters. She answered whatever questions the reporters put to her and was not inciting anyone to do anything.

(7)  The Alliance’s street booth in Shatin on 23^rd May 2021[176]: D4 said the content of her speech was the same as that at the Mong Kok street booth; that is, to incite or call on the public to do reasonable acts.

(8)  Demonstration by the Alliance on the ground floor of West Kowloon Law Courts on 11^th June 2021[177]: D4 stated that it was a clip of her meeting with reporters before her appearance in court for the June 4^th Assembly case. She was making responses about the Alliance’s stance and views on the case, as well as its stance regarding something that had happened on 4^th June that year. She was not inciting others. The only specific act she called on the public to do was to donate to the Alliance, which was not an unlawful means.

(9)  Telephone interview with D4 by Cable News on 12^th June 2021[178]: D4 expressed that the questions asked were about her stance on one-party dictatorship, which did not involve any incitement to any acts. She merely answered whatever the reporters asked at that time, and she had no control over what the reporters asked, edited or broadcast.

(10)  Press conference held by the Alliance at the June 4^th Museum on 5^th September 2021[179]: In relation to the police allegation that the Alliance acted as a foreign agent and their demand that it provide certain information, the Alliance considered that the demand was unlawful and therefore refused to comply. They were offering their explanations and responses in the press conference instead of asking anyone to do anything. The only act she called on others to do was to participate in the discussion on whether the Alliance should be disbanded. It was not an unlawful means. Her remarks on that day could also be understood as an incitement of the National Security Department to stop its abuse of power. D4 further stated that members of the Alliance had said on several occasions that they anticipated possible imprisonment and harassment by the government. It was not because they knew they had breached the law but because they knew they had offended those in power. In the reality under one-party dictatorship, those in power had the means to get them imprisoned. The case of accusing them as a foreign agent was a good example.

In the press release distributed to reporters by the Alliance at the venue that day (D4-24), it was mentioned that “the Alliance has upheld its Five Action Agendas for 32 years – ‘Release pro-democracy activists, reverse verdict on 1989 pro-democracy movement, investigate liability for massacre, end one-party dictatorship, construct a democratic China’.  These are demands raised by the people on their own, reflecting the Hong Kong citizens’ adherence to justice and longing for democracy”. D4 stated that this had been the Alliance’s stance until the very last moment.

300.D4 showed a series of feature stories about the Alliance which was published by the Stand News between 1^st and 3^rd June 2021, “The Alliance’s Battle. 1-3” (D4-25). The content covered the history of the Alliance, the means and methods it had used over the years, the origin of the Five Action Agendas, etc. It also contained interviews with a number of current or former Standing Committee members and volunteers, including D4. She agreed with and adopted those parts of the report which concerned her[180], and the relevant information was provided by her. Based on her understanding as a Standing Committee member of the Alliance, D4 confirmed that, save for two corrections[181], all the content of the report concerning what the Alliance had done was accurate.

S.2  Cross-examination by D1

301.D4 agreed that when she was interviewed under certain circumstances, she was speaking in her personal capacity, giving her own personal views which did not represent those of the Alliance. If D4 expressly told the reporters that she was representing the Alliance, or if the interview headlines indicated that she was representing the Alliance, or if she was speaking in her capacity as the Vice Chairperson of the Alliance, then her words represented the Alliance. A spokesperson system had been established within the Alliance, with the Chairperson, Vice Chairpersons and spokespersons being the key personnel representing the mind and will of the Alliance.

302.The Alliance was founded in 1989 when D4 was only 4 years old. D4 agreed with D2 that although the objective to “overthrow the ruling syndicate of Deng-Li-Yang” was mentioned in the Introduction to the HK Alliance in the first five years, it was not a call to overthrow the leadership of the Communist Party. This objective had been removed since the sixth year. D4 accepted that the call to overthrow or subvert the leadership of the CCP was never mentioned in either the Introduction to the HK Alliance or the Memorandum and Articles of Association of the Alliance.

303.D4 confirmed that the Five Action Agendas had to be read together and not piecemeal. D4 accepted that the content published in the name of the Alliance on websites, Facebook, Twitter, YouTube, and various activities organized in the name of the Alliance, were all for putting its Five Action Agendas into practice rather than for the “end one-party dictatorship” concept alone.

304.D4 claimed that it was impossible for the Chairperson, Vice Chairpersons or D4 herself to personally monitor all the content published on the internet or social media by the Alliance or all the items available for sale in the June 4^th Museum. She did not monitor the publication of content on such platforms, nor had she ever heard of D2 or D3 doing so. D4 agreed that none of the content shown on the Alliance’s online platforms was published by D2, D3 or D4, and it was impossible for her to check the content every time. D4 accepted that, under some circumstances, staff of the Alliance would publish some content online, and usually the Alliance would authorise its staff to continue with such work. The Communications and Publications Department was responsible for the information and content of the website, but they would not scrutinise the content published on every occasion. Problems seldom arose, and even if they did, the publication concerned would simply be taken down subsequently. There was more than one person responsible for online publication matters (including staff and volunteers of the Alliance), and they had been authorised by the persons-in-charge of the Alliance.

305.Regarding the screenshots captured by police from the June 4 Memory & Human Rights Museum website between 14^th and 15^th September 2021[182], D4 stated that the platform had been operating independently since around August 2021, and thus had remained so for about a month when the police captured the screenshots. D4 indicated that the content of the screenshots showed no significant changes from what she recollected.

306.D4 agreed that “ending one-party dictatorship” was different from “ending one party”. She further agreed that when she, representing the mind and will of the Alliance, referred to “ending one-party dictatorship”, that was not a call to end the leadership of the CCP. D4 said that her analysis or explanation of “ending one-party dictatorship”, leaving aside differences in wording, essentially carried the same meaning as that of D2. When she was representing the mind and will of the Alliance, her case was consistent with that of D2. Regarding the remarks D2 made for himself and on behalf of the Alliance’s mind and will that “there was no mention of overthrowing the CCP’s leadership”, D4 agreed.

307.D4 was aware of the provisions involved in the amendments to the Chinese Constitution in 2018. She agreed that, when representing the mind and will of the Alliance, she knew that both the Preamble and Article 1 formed part of the Chinese Constitution. D4 further agreed that, during her tenure as Vice Chairperson of the Alliance, she never pushed for amendments to the Introduction to the HK Alliance, the Constitution or Memorandum and Articles of Association of the Alliance to introduce ideas of subversion or overthrowing.

308.D4 accepted that the word “overthrow” was used in her platform when she stood for election to the 32^nd Standing Committee in December 2020[183]. It was her personal will when she ran as a candidate. The platforms of D2 and D3 in that election did not contain any wordings of “overthrow” or “subvert”. D4 agreed that, irrespective of whether D2 or D3 was the Chairperson, the Five Action Agendas remained unchanged.

309.D4 said in her evidence that after the Chinese constitutional amendment in 2018, TAM Yiu-chung expressed that people had to stop chanting the slogan of “ending one-party dictatorship”. D4 agreed that despite this, the June 4^th Assembly or chanting of the slogan was not barred in 2018 and 2019. D4 accepted that subsequently in 2020 and 2021, the reason for banning the assembly which the police provided to the Alliance was due to public health risks, rather than messages concerning national security or the slogan of “ending one-party dictatorship”. D4 agreed that all along she did not believe the slogan of “ending one-party dictatorship” might attract criminal liability.

310.When asked whether the Alliance intended to change the fundamental/basic system of the State, D4 indicated that if it referred to the fundamental system stipulated in the Constitution, there was no such discussion within the Alliance. If it referred to a change in the political system in reality, the Alliance demanded for a substantial change. However, the term “fundamental system” might not be used. Regarding the evidence of D4 that the Alliance considered that the most ideal situation would be a re-write of the Chinese Constitution in its entirety rather than raising objections to only one or two items, she expressed that the Alliance had no discussions about the term “fundamental system” in a legal sense. The Alliance, however, did call for a substantial change in the political system in reality.

311.In relation to remarks made by officials on various occasions when the HKSAR government moved forward with the legislation for BL 23 in 2003, which were shown by D1[184], D4 claimed that she had not seen the documents before. She indicated that the legislative intent in 2002 had little influence on the work of the Alliance, and she had paid no heed to it since it was not the law. But being the mind and will of the Alliance, she would possibly be affected. For example, when deciding on how to interpret the NSL, she considered that the legislative intent of BL 23 should be adopted.

312.D4 agreed with D1 that when she mentioned in her evidence some views expressed by other people (for example, remarks made by TSOI Yiu-cheong and D3), her explanations were based on her personal understanding because she could not represent others. D4, however, indicated that her comments could also be understood as the Alliance’s stance.

S.3  Cross-examination by the prosecution

313.When D4 began serving as a volunteer for the Alliance, in addition to assisting with the June 4^th Assembly, she also took up work in other areas. At that time, she was aware that the Alliance advocated the proposition of “ending one-party dictatorship”. When running for the Alliance’s 26^th Standing Committee in 2014, D4 did not harbour any idea of leading the Alliance; she simply hoped to do her best. In 2015, D4 became the 27^th Vice Chairperson of the Alliance and had remained so ever since. D4 explained that the Vice Chairperson was internally elected amongst the Standing Committee members, instead of by candidacy. Someone nominated her, and she did not decline. D4 accepted that as Vice Chairperson, she assumed a leadership position in the Alliance, that was able to speak on its behalf and served as its public face.

314.D4 agreed that after she had become a Standing Committee member and subsequently the Vice Chairperson of the Alliance, apart from taking up a leadership role, she naturally brought her own ideas to the Standing Committee. The Alliance’s Standing Committee held meetings in which members discussed various matters, and they could put forward their views in these discussions. Whether or not the Standing Committee members shared the same view, they would arrive at a final decision by consensus after the discussions. Whatever the Standing Committee’s decision was, all members would abide by it.

315.D4 agreed that after 2018 (covering the charge period), there were another two or three spokespersons alongside D2, D3 and D4, who were either the Chairperson or Vice Chairperson. However, the three of them remained the primary public faces and spokespersons. D4 confirmed that the situation remained unchanged for the 31^st and 32^nd terms of the Alliance[185]. D4 pointed out that the spokespersons were not strictly required to adopt every stance decided by the Standing Committee. Since there could not be detailed decisions on various matters, a certain degree of flexibility was permitted. While the manner of expression might be different, the ideologies and propositions were essentially the same.

316.D4 confirmed that both D2 and D3 had already been detained by May 2021. At that time, D4, who served as Vice Chairperson, was the only one who remained at liberty amongst all the Chairperson and Vice Chairpersons. Some Standing Committee members had started to resign. When it came to September 2021, there were still five Standing Committee members, including D4, who were not in detention yet, and they could still form the quorum for a Standing Committee meeting. D4 agreed that she remained the primary spokesperson and public face of the Alliance then. At that stage, members did nothing contrary to the Standing Committee’s previous decisions and had been acting in accordance with the decisions made (including those reached before the detention of D2 and D3). D4 affirmed that as a Standing Committee member, she acted in line with the Alliance’s Agendas. There would be new decisions made by the Standing Committee during that period, but no additions were made to its principles or Agendas.

317.The “Declaration on the 32^nd Anniversary of June 4^th”[186]published by the Alliance on Facebook on 4^th June 2021 still included the proposition of “ending one-party dictatorship”. D4 confirmed that the declaration was written by D2. At all times during D2 and D3’s detention, there was no change to the Alliance’s Agendas.

318.Since assuming office as a Standing Committee member and subsequently as Vice Chairperson of the Alliance, D4 had never asked D2 or D3 what the Five Action Agendas stood for. It was unnecessary to ask anyone, and indeed she never asked what the phrase “end one-party dictatorship” meant. D4 stated that a consensus existed amongst them, and there was no specific discussion. The phrase “end one-party dictatorship” was not complicated; therefore the general public could understand it.

319.D4 accepted that the June 4^th Assembly was an important event of the Alliance, and most Hong Kong people were aware of it. D4 affirmed that the theme of the June 4^th Assembly every year was decided by the Standing Committee. The official declaration and eulogy were drafted by the speakers themselves before submitting the same to the Standing Committee for approval. The selection of speakers invited to give speeches on stage was handled by a sub-committee, with invitations issued only after obtaining the Standing Committee’s approval. The content contained in the event booklet, including the official declaration, the eulogy, and transcripts of the videotaped speeches, were all known prior to printing and distribution.

320.D4 confirmed that the themes of the June 4^th Assembly in 2018 and 2019 aligned with the Five Action Agendas. When the Standing Committee approved the themes, there would not be any detailed discussions regarding the interpretation. While members might put forward various ideas during the discussions, they eventually agreed on the wording they found to be appropriate.

321.The theme of 2018 June 4^th Assembly was “Mourning June 4^th! Resisting authoritarianism!”  D4 pointed out that “authoritarianism” referred to a political system but not a specific political party. She further agreed that she would describe the government under the control of CCP as one of authoritarianism.

322.The theme of 2019 Assembly was “The people will not forget – Remember June 4^th. Justice will prevail”. D4 claimed that as a theme for commemoration of June 4^th, “justice” referred to justice in June 4^th. It was not about the winning or losing in a confrontation, but a fair and just result in the June 4^th Incident. The Alliance, however, did not provide any definition, and everyone could freely interpret it. In any event, justice was a goal worthy of pursuit by all.

323.The Assembly theme in 2020 was “Truth. Freedom. Life – Resistance”. D4 accepted that, by then, rumours concerning the enactment of NSL had already emerged. She indicated that “resistance” referred to resistance against all unjust repression, which was not confined to political structures but covered all unfair and unjust matters. It bore the same meaning as “Struggle” in the theme of the 2021 Assembly, “For Freedom  A Common Fate  A Shared Struggle”.

324.The official declaration of the June 4^th Assembly in 2018 was read out by D4. Both D2 and D3 were present at that time. Part of the declaration read, “What is ‘end one-party dictatorship’ about? It is simply a demand for party alternation, returning the power to the people, genuine democracy”[187]. D4 explained that it referred to the possibility of peaceful party alternation within the system, instead of naming one political party to replace another. D4 agreed that the declaration had been approved by the Standing Committee, and her view definitely represented the stance of the Alliance. D4 disagreed that party alternation constituted a breach of the 2018 Constitution.

325.D4 confirmed that in 2018, 2019 and 2020, both the physical and online assembly declarations made reference to Charter 08. It was because the Alliance was in continuous support of both Charter 08 and the constitutional amendment movement and agreed with the ideologies of Charter 08. Regarding the political system advocated in Charter 08, D4 stated that, although the Alliance agreed with the general direction of Charter 08, they had yet to engage in concrete discussions regarding how to realise the recommendations concerning specific distribution of powers, federal republic, etc., and disputes might have arisen at that stage.

326.D4 confirmed that, as D2 had written in his candidate’s platform[188], the Standing Committee of the Alliance had discussions on coping measures both before and after the implementation of NSL because they were concerned that the Alliance and the Standing Committee might be held criminally liable under NSL. At that time, the Standing Committee considered that NSL might be weaponised for political repression. The red line of national security might be used to silence political dissidents, and the Alliance was obviously a voice of political dissent. The result of those discussions was: “Uphold the Five Action Agendas, no retreat, no giving-up, keep fighting for the Five Action Agendas.”

327.D4 attended and participated in the discussions on this issue. They mainly discussed the risks of committing the offences of Incitement to subversion, Subversion or Collusion with external elements. After the discussions, they concluded that there could be no countermeasure. They took the view that the risk could not be eliminated, and that the Alliance would continue with its previous work even if that carried risk. That was because their stance of fighting for democracy would not change, and they would persist notwithstanding the risk of prosecution. The consensus within the Alliance was to uphold the Five Action Agendas. During the discussions, they considered that the risk they faced was a political rather than a legal one. The Alliance always believed that they had committed no offence, but the law might possibly be instrumentalised for political purposes in that situation.

328.As regards what D2 had stated in his platform, “In Hong Kong, when we talk about persistence in the post-NSL times, it is not just about expressing our mind. We have to be prepared for being held criminally liable. We have no idea when the red line imposed by the CCP will close in on the Alliance, and it all depends on the needs of the CCP’s political struggle.  Hong Kong laws can no longer safeguard our rights of association and of assembly to which we were entitled ”, D4 commented that it was an expression of D2’s personal stance and not part of the conclusion reached by the Standing Committee. She, however, personally agreed with D2 on such views.

329.D4 indicated that she would implement her platform each time she won an election. On her own observation and in her opinion, after D2 assumed office in 2020 as a member of the 32^nd Standing Committee, he did strive to deliver on his platform.

330.Regarding the ban on the June 4^th Assembly by the police on grounds of public health and safety concern in 2020 and 2021, the Standing Committee members of the Alliance (including D4 herself) did not genuinely believe that to be the real reason. They took the view that it was in effect political repression against an organization which those in political power did not favour under the pretext of the pandemic. The Alliance also stated publicly that it was merely “repression under the guise of the pandemic”. In 2021, the Alliance’s application for organizing the June 4^th Assembly was refused. By then, the NSL had already come into force, and D4 again understood it as repression under the guise of the pandemic. D4 stated that her remarks that continuing to chant the slogan “end one-party dictatorship” did not constitute an offence was based on her own judgment and not something she had been told by others.

331.D4 said that after the enactment of NSL, the Standing Committee members of the Alliance did discuss the risk of contravening the law. The discussion was that fighting for democracy could not possibly constitute an offence. Whether or not the Constitution conformed with the democratic ideal, the pursuit of democracy itself could never be an offence. It was therefore unreasonable to say that “ending one-party dictatorship” constituted an offence. D4 accepted that by 2020, the Alliance faced the risk of prosecution. D4 said the Alliance had heard that arrests would be made if they refused to cease operating, but they had no idea at all where to draw the line of safety. They could only choose between ceasing and continuing, and they chose to continue operating.

332.D4 stated that the Alliance supported all democratic movements, included but not limited to constitutional amendment. The Standing Committee did not expressly indicate that the proposition of “ending one-party dictatorship” included constitutional amendment, nor did they discuss this issue. However, the acts of the Alliance, for example, the support for Charter 08, were indeed support for constitutional amendment. D4 stated that in their discussions of countermeasures before and after the implementation of NSL, there was no specific discussion on the meaning of “ending one-party dictatorship”. It was possible that everyone tacitly understood what it meant, and they did not regard it as something important. D4 denied that the absence of discussion on this issue was because the Alliance understood “ending one-party dictatorship” meant overthrowing or undermining the fundamental system and body of power of the State by unconstitutional means. D4 explained that there was no such discussion because “ending one-party dictatorship” meant a fight for democracy, and everyone understood that “ending one-party dictatorship” was inevitable. Unless the Alliance ceased to fight for democracy, there was no point in discussing it. D4 stated that democracy included, but was not limited to, the possibility of party alternation.

333.D4 agreed that the “ruling party” and “ruling establishment” mentioned in the Foreword of Charter 08[189] referred to the CCP, and that the Alliance supported the content about the “ruling establishment” therein. D4 accepted that Item 1, “Constitutional amendment”, under “Our fundamental propositions” was the part of her evidence that concerned constitutional amendment. D4 agreed that “the privilege of one-party monopoly” under Item 9, “Freedom of association”, referred to the privilege of CCP’s monopoly. The reality was that the Constitution was unable to regulate the privilege of one-party monopoly; it was therefore necessary to regulate the acts of the political party by the Constitution.

334.D4 claimed that with or without the 2018 constitutional amendment, one-party dictatorship existed in reality, and CCP had always been the ruling party of the State. “One-party dictatorship” was a system or structure, and the current structure of “one-party dictatorship” was maintained by the CCP. She did not consider that the CCP had at all times sought to prevent any changes to that structure, but its position in recent years had indeed become increasingly rigid. The constitutional amendment in 2018 was a regression, moving in the opposite direction from what the Alliance had hoped for. D4 agreed that her description of the constitutional amendment in 2018 as a regression was similar to that of D2, and that it represented the views of the Standing Committee members as well. The Alliance did issue a declaration on the issue.

335.D4 disagreed that the focus of Charter 08 was to overthrow or undermine the leading position of the CCP, whether in fact or in law. D4 claimed while the Charter 08 did not exclude the possibility of ruling by the CCP, CCP might not become the ruling party under a democratic election. D4 agreed that if the ruling party so elected was not the CCP, it would not enjoy a leading position in the government. D4 personally considered that the constitutional amendment in 2018 had been “brought about” by the CCP, and she disagreed that the Constitution in 2018 was aimed at securing the CCP as the ruling party.

336.D4 agreed that, after the State’s constitutional amendment in 2018, the Alliance continued to support and to refer to Charter 08. D4 confirmed that in the official declaration of June 4^th Assembly, the Alliance made no statement about demands for constitutional amendment in accordance with the stipulations in the Chinese Constitution. As to other published content, including publications and content on the internet, D4 said she could not remember every statement that had been made, but these were not statements to which the Alliance attached great importance. The Alliance demanded that the government implement Charter 08, in which constitutional amendment had already been included; that was why the demand “to amend the Constitution in accordance with the stipulations in the Constitution” was not specifically mentioned. D4 agreed that the Alliance advocated a constitutional amendment in accordance with the ideology of Charter 08, but there was hardly any discussion on how the process of constitutional amendment was to be initiated because there was still a long way to go. It had not yet come to the stage of discussion on the concrete means, and therefore the Alliance had never discussed the means. D4 took the view that the NPC was basically a rubber stamp, making the passing of any constitutional amendment unfavourable to the CCP impossible. As a result, the prospect of a constitutional amendment was so remote at the time that it would require some long-term efforts. Under the then prevailing political environment, it was not possible, by undergoing the procedures under the Constitution, to demand the NPC to amend the Constitution. No one, however, could know the future, and they hoped it would happen one day. D4 said that the hope of constitutional amendment was always there. However, after the implementation of NSL in Hong Kong, the timeline was extended, and the prospect of constitutional amendment became slimmer and more remote. She indicated that even if the chance of success was only 0.1 percent, the Alliance would still strive for it.

337.D4 agreed that support for Charter 08 carried risk in the Mainland, and that the issue had been reported in the Hong Kong media. D4 denied that the Alliance wanted to put forward adverse material concerning the CCP of which the Hong Kong people had previously been unaware. She indicated that the Alliance had merely reiterated its stance of opposition to the CCP’s repression on Charter 08. What it had sought to put forward were more detailed and specific personal stories of pro-democracy activists whom the Alliance supported and was concerned for. The Alliance did not consider that as adverse material. The motive was not to smear the CCP, but to encourage the public to show concern for these people.

338.D4 accepted that Charter 08 was consistent with the Agenda of “constructing a democratic China”. As regards the prosecution assertion that Charter 08 did not concern “reverse verdict on 1989 pro-democracy movement”, D4 disagreed, saying that Charter 08 also addressed “transitional justice”. Although the demands did not appear under a heading of “rehabilitate June 4^th”, the substance of Item 19, a demand under “transitional justice” [190], was about the rehabilitation of June 4^th. D4 said that the wordings were unimportant, and the substance was to investigate the truth, to ascertain liability and to demand for accountability. D4 agreed that the Alliance supported Charter 08 because its content and ideologies were consistent with the Five Action Agendas.

339.D4 denied that she had made the assertion of “the main purpose of the June 4^th Assembly was mourning rather than advocating the goal of ‘ending one-party dictatorship’ ” to downplay the role of the June 4^th Assembly in the promotion of the Alliance’s Agendas. D4 clarified that the purpose of the candlelight vigil was not for the promotion of the Alliance’s propositions. The Alliance did not first formulate certain advocacy and then make use of June 4^th to promote it. June 4^th itself was an incident which called for mourning, and genuine mourning would naturally give rise to propositions of a certain kind. D4 accepted that there would be slogan chanting concerning the Five Action Agendas at the June 4^th Assembly, and it happened as and when appropriate without any regular pattern. The host would decide when to chant according to the circumstances.

340.As to why the official statement was left until the end of the June 4^th Assembly, D4 explained that, in fact, not everyone remained until the close of the assembly. D4 agreed that the official footage was broadcast on the public platform of YouTube, which remained in operation and was available for public viewing during the charge period. The official declaration was also printed in the Assembly booklet, which was available both in hard copy for distribution at the scene and as an online version for download[191]. As regards whether the statement was delivered only after emotions had built up amongst the participants for a more powerful impact, D4 accepted that emotions were inevitable. She added that various people would speak before the declaration was read out, and the Alliance had no control over what they would say and was unable to predict the emotional impact. Therefore, the Alliance had never contrived or considered how emotions might be built up towards the declaration. What the Alliance could best manage was the ceremonial programme in the first part of the Assembly; any build-up of emotions towards the end could hardly be controlled. D4 accepted that leaving the declaration to the concluding part of the Assembly could, objectively, arouse strong emotions, but that was not the Alliance’s purpose in designing the programme.

341.D4 agreed that at the close of the Assembly each year, there would be appeals for donations, calls to visit the June 4^th Museum and recruitment of volunteers, and the Alliance genuinely wished to achieve these outcomes. The appeals were not made at the beginning of the Assembly because such appeals were not the focus of their mourning. The participants came to mourn; they did not come for the Alliance’s appeals.

342.Charter 08 was mentioned at the June 4^th Assembly in 2018. In the 2019 Assembly, considerable amount of content and slogans were connected with the social movement at that time. The host, for example, referred to the slogan of “forced through the evil Extradition Law”[192] in relation to the Anti-ELAB movement. D2 chanted the slogan of “opposing National Security Law”[193]in the 2020 activity in opposition to the NSL. D4 did not accept that these showed that, after 2018, the June 4^th Assemblies were no longer held mainly for commemoration of June 4^th. She stated that the speeches or slogans in 2019 and 2020 were not pre-arranged but simply made or chanted on the spot, and the assemblies were designed to be connected with the democratic movement then under way. The Alliance took the view that genuine mourning required one to resolve the problems rather than confining oneself to 1989. The democratic movement at that stage no doubt covered not only the Mainland but Hong Kong as well, and therefore mourning June 4^th did not contradict with the chanting of such slogans. D4 disagreed that the Alliance had made use of these current issues to enhance the promotional effect on the Five Action Agendas, pointing out that the Five Action Agendas actually required them to show concern about all that was taking place.

343.The prosecution cited the remarks made by D4 in an online interview programme conducted between 27^th April and 24^th May 2021[194], alleging that she had already said that the reference was not merely about June 4^th, and that there had to be different ways of expression as the times went by. D4 stated that she had never said that the Alliance only spoke about June 4^th. Mourning itself required one to take a stance on June 4^th. As she had said in the interview, the crux of the event was June 4^th, and one could not say to the contrary that June 4^th was being used to promote the goal of “ending one-party dictatorship”. D4 said the Alliance had been thinking about how to motivate the younger generations to continue to care about June 4^th, to build a rapport, and to carry on the democratic movement, in the hope of passing on the torch.

344.D4 disagreed that they had made use of the current affairs to enhance the advocacy effect of the Five Action Agendas. She stated that people had realised that what happened in Hong Kong and in China affected each other, and so they had become more concerned about the democratic movement in China. Some years earlier, there emerged an attitude of disengagement in society: “Hong Kong people minding only Hong Kong affairs”. It was only after the implementation of the NSL that people witnessed the impact of politics in China on Hong Kong. D4 agreed that in around 2018 and 2019, the Alliance faced with a situation that young people generally regarded June 4^th as less relevant to themselves. The Alliance, however, hoped to sustain the June 4^th movement and its spirit, and therefore tried to connect them with the Anti-ELAB movement in Hong Kong. The slogan “A Common Fate, A Shared Struggle” was used to make young people feel that what happened in the Mainland had a bearing on Hong Kong, in the hope of arousing their enthusiasm. D4 stated that the original aspiration and core motivation of the Alliance had never changed, but the language and means adopted to convey the messages changed with the times. D4 confirmed that it was the general direction of the Alliance’s Standing Committee.

345.D4 disagreed that the June 4^th Assembly had linked the Agenda of “reverse verdict on 1989 pro-democracy movement” with the other Agendas in order to promote the Alliance’s political platform. D4 stated that the Assembly served as a platform and a space for the commemoration of June 4^th. June 4^th did not belong to the Alliance, and the Alliance could not monopolise the remarks about it. The Alliance would no doubt express its own stance, but the Assembly was not held for the purpose of promoting the Alliance’s stance.

346.D4 confirmed that all content on the Alliance’s website, the June 4^th Museum website, and the Alliance’s Facebook, Twitter and YouTube platforms was published by the Alliance. The Alliance had set up social media platforms, but that was not proposed by her. The Alliance’s website had already existed long before D4 became a Standing Committee member. Its Facebook page might also have been established at a relatively early stage, with Twitter being added later. All these platforms had been authorised by the Standing Committee to provide content publications, and it was impossible for each item of the content to be individually approved. D4 confirmed that the platforms operated in the name of the Alliance were authorised by the Alliance, that content published online accurately reflected the Alliance’s stance, and that the dates mentioned for the activities were all accurate. D4 stated that she ought to have a clear recollection if any online publication produced by the prosecution contained a serious error, but she did not recall that happening.

347.D4 affirmed that the Standing Committee of the Alliance had agreed to the setup of the June 4 Memory & Human Rights Museum website. The website remained in operation during the charge period, but it had been operating separately and independently since August 2021 and was no longer associated with the Alliance’s Standing Committee. The idea at the time was that, given the potential difficulties in sustaining the physical June 4^th Museum, the June 4 Memory & Human Rights Museum website could serve as a backup or substitute. D4 participated in discussions on the relevant preparatory work but was not directly involved in the setting up of the website. On the June 4 Memory & Human Rights Museum website, the page “Candlelight Vigil Booklet Over the Years”[195] allowed downloads of the June 4^th Assembly booklets from 1992 to 2020, including the 2018 and 2019 booklets which were mentioned in the evidence.

348.D4 disagreed that during the charge period, the physical June 4^th Museum was used to strengthen the advocacy of the Agenda of “ending one-party dictatorship”. D4 claimed that the June 4^th Museum was meant to safeguard and publicise the truth, which in itself constituted the implementation of the said Agenda.

349.The June 4^th Museum was open to the public for visits. It was later changed to visits by appointment only due to the pandemic. D4 could not quite remember whether an admission fee was charged. She confirmed that prior to 1^st June 2021, the June 4^th Museum was open intermittently, during which exhibitions and press conferences were held. The June 4^th Museum was closed on 1^st June 2021 due to enforcement actions taken by the FEHD, and it had not reopened since. Apart from being open for public visits, the June 4^th Museum also served as the office of the Alliance. Whether it was open or not, the Standing Committee would hold meetings there.

350.Referring to Facebook and Twitter publications on various dates, D4 confirmed that the June 4^th Museum had remained open when the NSL came into effect on 1^st July 2020. The theme of the new exhibition at that time was “At the Forefront of Anti-Totalitarianism: From June 4, 1989 to the Anti-Extradition Movement” [196]. D4 agreed that there would be a matching current issue for each exhibition held at the June 4^th Museum, with the June 4^th Incident paired with the Anti-ELAB social movement in 2019. She stated that the June 4^th Museum not only covered June 4^th but provided a complete picture of the democratic movement in China. However, the main focus was definitely June 4^th. D4 accepted that pairing the exhibitions with current affairs issues would enable visitors to the June 4^th Museum to “have a better grasp of what we wished to say”, and she added that the Alliance had also hoped to express itself better.

351.D4 confirmed that the June 4^th Museum, after being closed for a period due to the pandemic, reopened on 15^th September 2020. The June 4^th Museum was open on 23^rd February 2021 and held an exhibition about SZETO Wah, which was a decision of the Standing Committee. D4 affirmed that a press conference was held at the June 4^th Museum on 21^st February 2021 to promote this exhibition, but she was not sure whether the museum was open to the public at that time. Subsequently, the June 4^th Museum reopened for three days from 2 p.m. on 30^th May 2021 and held a photo exhibition themed “A Common Fate, A Shared Struggle”, with an estimated attendance of over 550 people.

352.Based on a Facebook publication dated 19^th March 2021, D4 confirmed that there was a series of tote bags available for sale in the June 4^th Museum, and the bags could be ordered online as well. One of them was printed with an ambigram of “Hong Kong/Add Oil” in black against a yellow background, and it seemed that it was a font style that only emerged and became popular in the 2019 social movement. This reflected that some of the Alliance’s products would align with current issues. D4 agreed that souvenirs, including some printed with the slogan of “ending one-party dictatorship”, would be given to visitors who made a payment. The Alliance sold souvenirs at the June 4^th Museum to fund the operating expenses of the museum.

353.The USB stick found by the police at the June 4^th Museum, apart from containing materials related to June 4^th, also contained a document titled “The Different Stages of Development of and Challenges faced by the Alliance”[197]. It described the Alliance’s various stages of development, how it handled challenges, and its future directions and strategies on “implementing the Five Action Agendas”. D4 indicated that the latter might have been written many years ago. She agreed that the content and index on the USB stick could be revised at any time; since the stance of the Alliance had remained unchanged at all times, even very old documents on the USB stick could still represent the Alliance’s stance.

354.D4 stated that the USB stick was not a souvenir, but rather intended as a mobile June 4^th Museum for people to preserve and disseminate their own information related to June 4^th. The focus of the USB stick was to disseminate materials related to June 4^th instead of the future directions and strategies of the Alliance. The USB stick contained the document titled “The Different Stages of Development of and Challenges faced by the Alliance” because the document was relevant. The Alliance’s directions and strategies were stored on the USB stick because the Alliance was part of the movement and also a part of history. D4 disagreed that she was downplaying the role of the June 4^th Museum in the promotion or publicity of the Alliance’s Agendas, stating that all along what she had been talking about was a question of importance and priority. The Alliance was indeed the organizer of the June 4^th Museum and would discuss the Alliance’s stance in the Museum, but the purpose of the Museum was not to promote the propositions of the Alliance. It was June 4^th that came first, and as a result the June 4^th Museum and the Alliance came into being.

355.D4 confirmed that the financial statements of the Alliance were submitted to the Companies Registry only after being approved by the Standing Committee. The financial statement for the year ending 30^th June 2019[198] contained incomes and expenditures of the June 4^th Museum, and the part pointed out by the prosecution included items of general donations and expenses, June 4^th USB sticks, revenues from product sales and admission fees, litigation costs, etc. D4 stated that accounting was not her department, so she knew little about it. The June 4^th USB sticks listed in the financial statement were probably the same as those mentioned above; donations and sales revenue were listed separately; she was not sure whether the admission fee was a flexible donation or set at a fixed price; the litigation costs of about $400,000 related to a lawsuit concerning the Museum’s breach of the deed of mutual covenant; the general donations of over $500,000 did not come from donations at the June 4^th vigil because donations from the vigil and the Museum would be specifically marked. D4 added that quite a number of expenses were not included in this section. Major costs such as running expenses, purchase price of the premises, administrative fees, staff costs, management fees of the June 4^th Museum, rates and electricity charges, were not included. D4 stated that the Museum’s accounts did not balance and it was unable to make a profit, and the income and expenses of the Alliance also fluctuated at times. She agreed that the successful establishment of the June 4^th Museum hinged on the substantial donations raised by the Alliance in various activities.

356.D4 agreed that the activities organized with the approval of the Alliance’s Standing Committee (including donations, declarations, joint signature campaigns, assemblies, marches, etc.) were implementations of the Five Action Agendas, including “ending one-party dictatorship”. By “implementation”, it meant all works were efforts directed to achieve the relevant objectives, and the usual activities of the Alliance were means to get close to those objectives. As to whether the Five Action Agendas could be achieved by doing certain things, D4 stated that the Agendas could never be achieved if they did nothing. However, achievement was not guaranteed, and they could only strive for it. D4 agreed that all work and activities of the Alliance were directed towards the goals of the Five Action Agendas.

357.D4 accepted that the Alliance had hoped others would identify with its ideologies. The acts to “end one-party dictatorship” which the Alliance hoped others would do were the specific acts it had been calling for; that is, acts decided upon by the Standing Committee, which included participation in assemblies, demonstrations, protests, etc. Action was required in order to achieve the goal of “ending one-party dictatorship”, and the Alliance was not merely chanting slogans. D4 indicated that, in theory, one could not rule out the possibility of achieving “ending one-party dictatorship” through action. As D3 had mentioned in the article “How to End One-Party Dictatorship”, there were various methods[199], including violent revolution. That, however, was not something the Alliance advocated. The method it adopted was to build up the strength and pressure of civil society. There was no single, specific action in this method by which the goal of “ending one-party dictatorship” could be achieved, nor was it a planned action directed to achieve the goal.

358.D4 agreed that, during the charge period, the specific actions which the Alliance appealed on online platforms to the public to take, such as marches, demonstrations, signing petitions, street booths, asking people to light candles to mourn for June 4^th in 2021 etc, were all ways to implement the “end one-party dictatorship” Agenda.

359.D4 agreed that regarding the line “[t]he people’s democratic dictatorship…which in essence is a dictatorship of the proletariat” in the sixth natural paragraph of the Preamble to the Constitution, the latter phrase was an explanation of the former. She did not accept that dictatorship of the proletariat was a key point of the socialist system, pointing out that those were two different concepts. D4 was of the opinion that the terms “the people’s democratic dictatorship”, “dictatorship of the proletariat”, “socialism” and “leadership by the Communist Party of China” in the provisions were contradictory to “led by the working class” and “based on an alliance of workers and peasants”. D4 did not accept the prosecution’s assertion that from the perspective of the State amending the Constitution, the inclusion of “leadership by the Communist Party of China” was not in conflict with the aforesaid.

360.D4 confirmed that during the material period, she already knew it was stipulated in Article 1 of the Constitution that “[l]eadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics. It is prohibited for any organization or individual to damage the socialist system.” She agreed that on a literal reading of the words in the Constitution, leadership by the CCP was the fundamental system of the country. She also agreed that Chapter III of the Constitution stipulated the organs of State power.

361.D4 opined that the body of central power of the country was in fact under the leadership by the CCP. She agreed that “[a]ll power in the People’s Republic of China belongs to the people” stated in Article 2 and “…shall practice the principle of democratic centralism” stated in Article 3 of the Constitution supported what she said about sovereignty of the people and democracy of the people in her testimony, but disagreed that the inclusion of “leadership by the Communist Party of China” in the amendment of the Constitution in 2018 was not in conflict with the above.

362.D4 confirmed that all five categories of means (amending the law, establishing human rights mechanism, be under external supervision, be accountable for tortious acts and stopping all unlawful acts directly) suggested in the Universal Periodic Review Report[200] submitted by the Alliance to the United Nations were all related to “ending one-party dictatorship” and were all lawful means. Amongst those means, “amending the law” included but was not limited to amending the Constitution. D4 clarified that for the parts directed at the government in the said Report, some of the means directed at the public might not necessarily be included. D4 reiterated that the “end one-party dictatorship” proposition was not directed at the CCP. Viewing from a reasoning perspective or on a superficial legal aspect, the Alliance was demanding the government rather than the CCP to discharge the obligations, although the former in fact was under the CCP’s control.

363.D4 disagreed that the Alliance’s proposition to implement “ending one-party dictatorship” did not include the amendment of the Constitution by constitutional means in accordance with the Constitution. She expressed that it would be best if the Constitution could be amended by constitutional means to achieve the goals of the Alliance. The Alliance appealed to the people to exercise the freedom of speech stipulated in the Constitution, appealed to the NPC and the government to act in accordance with the Constitution.  

364.D4 agreed that the article “How to end one-party dictatorship”[201] was written by D3 in the capacity of the then Chairperson of the Alliance, and the content therein represented the stance of the Alliance. D4 also agreed that the said article pertained to one of the Five Action Agendas, carrying a certain degree of significance. The three methods suggested by D3 in the article were: “peaceful and orderly top-down reform”, “overthrowing dictatorship by violent revolution” and “arduous and persistent non-violent resistance”. D4 pointed out that the first method was for the CCP itself to take the leading role and push for reforms; the present case does not concern the second method.

365.D4 alleged that the third method of “arduous and persistent non-violent resistance” referred to the use of lawful means and did not involve unlawful means. She agreed that the term “resistance” appeared many times in the third method, and accepted that the passage of “historical experiences of ‘peaceful revolution’ successfully forced out by citizens’ peaceful resistance include the Philippines, South Korea, Taiwan, and recently, Myanmar. The most important objective of peaceful resistance is to promote the ripening of societal conditions and enlightenment of the people to form a civilized culture and societal consensus. By then, the army and the police dare not easily resort to violent repression, and the dictators will compromise in the face of difficulties” in the article meant bringing about political changes through the forming of societal pressure, and the term “peaceful revolution” therein described political changes. D4 was of the opinion that political changes mentioned in the article involved fundamentally changing a country’s political system; that is, there must in fact be changes, which could be colloquially understood as “regime change”, and she agreed that People’s Power in the Philippines was an example of such regime change.

366.D4 confirmed that the article (especially the part quoted above) reflected the stance of the Alliance; that is, according to the Alliance, to implement “ending one-party dictatorship” by lawful means. When asked if regime change was to be carried out, D4 expressed that the emphasis of the Alliance had all along been democratic transition, which was regarded by ordinary people as regime change, a statement she took no objection to. It was precisely because there were variances between the ideals of the Alliance and the stipulations of the existing Constitution that the Constitution needed to be amended. When asked if amending the Constitution meant (1) regime change first, followed by the re-writing or amendment of the Constitution; or (2) amending the Constitution in accordance with the provisions of the Constitution by the current ruling party, D4 expressed that “regime change” was a transition and did not happen instantly. There were already precedents in history, such as the Communist Party changing the Constitution through the NPC to hold elections, with the democratic transition of some Eastern European countries also carried out in the same way. Therefore, it was not that the Constitution would only be changed after regime change; rather, it was a transition.

367.D4 pointed out that the Five Action Agendas of the Alliance should be regarded as an integral whole, and in terms of levels, “to construct a democratic China” could be regarded as the ultimate goal, covering all other concepts. D4 agreed that irrespective of the sequence, regarding the goal of “ending one-party dictatorship” (including having a democratic China), which D2, D3 and herself wished to implement ultimately, the first consensus had to be “regime change”. D4 agreed that this was the stance of the Alliance during the material period.

368.D4 expressed that before they were charged, some people close to the pro-establishment camp had from time to time dropped a hint that the Alliance would be outlawed. She could not recall if the Alliance had made any rebuttal on this when the red line was closing in during the material period, as the hint-droppers did not say those things on public occasions; rather, they had familiar circles or people with social status pass the messages in private, and the Alliance was not able to make rebuttals publicly to such behind-the-scene messages. D4 claimed that when the other side made public statements, such as when LUO Huining (the then Director of LOCPG) said the “end one-party dictatorship” slogan was the enemy of the prosperity of Hong Kong, the Alliance responded, but it did not mention in the response that the means it employed were lawful; whereas the Alliance made it clear in the press conference for the foreign agent case that everything the Alliance did was lawful. In addition, on the question of whether the “end one-party dictatorship” slogan was in breach of the Constitution, D4’s remark that it was the CCP who breached the Constitution could also be regarded as a rebuttal.

369.On 5^th September 2021, D4 said in her speech at the June 4^th Museum in the press conference for the foreign agent case that “the Alliance was founded in the midst of the 1989 pro-democracy movement, an organization founded on Hong Kong people’s own initiative… Our Five Action Agendas, maintained for 32 years to this day, ‘release pro-democracy activists, reverse verdict on 1989 pro-democracy movement, investigate liability for massacre, end one-party dictatorship, construct a democratic China’ are the spontaneous demands of Hong Kong people in the wake of the immense injustice seen in the massacre on June 4^th. … The campaign for rehabilitation of the June 4^th Incident has been the perseverance of the Hong Kong people for 32 years, whilst ending one-party dictatorship remains a mission that is far from being accomplished.”  D4 agreed that the press conference was a public occasion, during which she expressed the Alliance’s stance in upholding the mission to “end one-party dictatorship”, and expected there to be news reporting. D4 pointed out that the crux of the press conference was to respond to the foreign agent incident. As far as she recalled, she first roughly summarised the Alliance’s stance on that incident, followed by a detailed explanation. D4 agreed she did mention at the time that the Alliance would continue to uphold the Five Action Agendas, although that was not the primary purpose of the press conference. Nevertheless, she did in fact reiterate the established stance of the Alliance, and indicated to the press clearly that such a stance would continue to be upheld.

370.When she said in the speech that the Alliance “is inspiring protestors who continue to fight for democracy, be they inside or outside the country”, she was describing the role the Alliance had all along played in driving forward the democratic movement of China in Hong Kong. As the question of the Alliance’s survival was mentioned at that time, she hoped that the public would participate in the discussion of whether the Alliance should be disbanded. D4 did not accept that the Alliance was still inciting other persons to implement “ending one-party dictatorship” up until the last moment, but accepted that it was encouraging everybody to agree with or continue to uphold the goal of “ending one-party dictatorship”.

371.D4 disagreed that the goal of “ending one-party dictatorship” could not be achieved by lawful means. She indicated that the Alliance had all along been using lawful means. Although the journey to achieve the goal was long, the Alliance had been doing it all along. D4 agreed that the slow and steady accumulation she mentioned in her testimony referred to the accumulation of every seemingly trivial matter as a way to implement “ending one-party dictatorship”. In theory, she said, she could not deny the possibility of “ending one-party dictatorship” through certain actions, but that was not the method employed by the Alliance.

372.D4 agreed that during the time when she was a Standing Committee member or Vice Chairperson of the Alliance, she did say in June 4^th Assemblies “a single spark will surely ignite a prairie fire”, “we cannot give you a roadmap (whereby we) take it step by step, and dictatorship can be ended”, “revolution has yet to finish”, “not everyone is a revolutionary, but everyone can be a ‘human’, staying true to your conscience”. D4 expressed that the last one was to ask everybody to act with conscience, and disagreed that those phrases were asking others to pursue the goal of “ending one-party dictatorship” by unlawful means. D4 alleged that the wording of “revolution has yet to finish” was not tantamount to unlawful means; for example, the Velvet Revolution was a peaceful revolution. “Revolution” merely referred to a drastic change without including judgment on whether it was unlawful or not. As to the use of the term “revolution”, D4 opined that the Alliance did indeed ask for some very thorough changes and demand democratic transition, and thus, “revolution” could definitely be used as a description. She agreed that “revolution” usually entailed “regime change”, which was exactly what the Alliance demanded. D4 confirmed that the above represented the collective mind or directing mind of the Alliance during the charge period, and was the decision of the Standing Committee rather than of any individual.

373.D4 confirmed that in some footage covered by the charge period, the speeches made by the Standing Committee members of the Alliance (including D4 herself) on public occasions were explanations on “ending one-party dictatorship”, and not incitement to other persons to implement “ending one-party dictatorship”. D4 did not accept that such action carried at least an encouragement effect. She expressed that the speeches made by the Alliance on many occasions might not necessarily be directed at that slogan; each activity had different backgrounds and goals, and could not be generalised.

374.The following footage shows D2, D3 or D4 making speeches on various occasions:

(1)  TB4/SN60[202]: When D2 testified online before the U.S. House Committee of Foreign Affairs on 1^st July 2020, he introduced himself as the chair of the Alliance. D4 disagreed that D2 was sharing his opinion on behalf of the Alliance, pointing out that the host did not invite the Alliance to attend; but she agreed that the testimony made by D2 in entry 119 was consistent with the stance and Agendas of the Alliance.

(2)  TB4/SN62[203]: D3 was interviewed on “Experts on Current Affairs” between 1^st and 9^th July 2020. D4 expressed that it was not an activity of the Alliance; what D3 said did not represent the stance of the Alliance, but was merely his personal opinion.

(3)  TB4/SN63[204]: D2 was interviewed on “Precious Dialogues” between 23^rd August and 1^st October 2020. D4 expressed that it was the stance of the Alliance when D2 said the Alliance upheld “ending one-party dictatorship”, but the subsequent explanation was his own views. D4 personally agreed with the relevant speech completely, but such speech did not represent the stance of the Alliance.

(4)  TB4/SN64[205]: At an activity of the Alliance outside LOCPG on 1^st October 2020, D4 confirmed that D2 was speaking at an event of the Alliance, and she herself was also at the scene.

(5)  TB4/SN65[206]: On 10^th December 2020, the Alliance and Civil Human Rights Front were at the mobile street booth of the International Human Rights Day. D4 confirmed that D2 and D3 were speaking at an event of the Alliance, and D4 was also at the scene.

(6)  TB4/SN66[207]: D4 confirmed that at Victoria Park on 6^th February 2021, everyone was speaking at an event of the Alliance. D4 was also at the scene and her speech represented the stance of the Alliance as well.

(7)  TB4/SN67[208]: D4 confirmed that in the press conference held in commemoration of SZETO Wah at the June 4^th Museum on 21^st February 2021, D2 and D3 were speaking at an event of the Alliance, and their speeches were consistent with the stance of the Alliance.

(8)  TB4/SN68[209]: D4 was interviewed by the media at the June 4^th Museum on 22^nd February or 23^rd February 2021; D4 confirmed that her speech represented the Alliance. At that time, she was merely answering questions from reporters, probably including the question of whether the Alliance would continue with the “end one-party dictatorship” Agenda. D4 indicated that it was not on her mind to encourage anyone to continue to implement “ending one-party dictatorship”.

(9)  TB4/SN70[210]: D4 agreed that the flower offering at Ching Ming Festival on 4^th April 2021 was an event of the Alliance, and she was also at the scene. The speeches made by D2 and D3 were consistent with the stance of the Alliance.

(10)  TB4/SN71[211]: D4 confirmed that she was speaking on behalf of the Alliance in the joint demonstration activity of the Alliance and LSD on 15^th April 2021. Afterwards, the Alliance posted about the activity on Twitter[212]. D4 expressed that the Alliance usually posted the relevant activities on online platforms; one would naturally want the society to know when demonstration activities were held, especially under circumstances where one was unable to communicate at the scene.

(11)  TB4/SN72[213]: D2 gave a news interview at the June 4^th Museum on 16^th April 2021. D4 confirmed that what D2 had said was consistent with the stance and Agendas of the Alliance.

(12)  TB4/SN73[214]: D4 was interviewed outside LOCPG on 27^th April 2021, and D4 confirmed she was speaking on behalf of the Alliance.

(13)  TB4/SN74[215]: On 2^nd May 2021, D3 and D4 cleansed the Pillar of Shame at the University of Hong Kong, which was an annual activity held by the Alliance. D4 confirmed that the said activity was an event of the Alliance, and the attendance and speeches of both of them represented the Alliance.

(14)  The relevant parts of TB4/SN75 to SN82[216] concerned the speeches made by D4 between 9^th May 2021 and 5^th September 2021. D4 confirmed that except for TB4/SN78 and TB4/SN79, where she was interviewed in her personal capacity, she was speaking on behalf of the Alliance on the other occasions (street booths, demonstrations or press conferences of the Alliance).

375.D4 disagreed with the following suggestions made by the prosecution:

(1)  D4 and the Alliance wanted to advocate the “end one-party dictatorship” Agenda, and wished that more people would support their Agenda. D4 stated that she did not express any wish to advocate or promote this Agenda, but agreed that the Alliance hoped more people would support this Agenda;

(2)  D4 agreed that what the Alliance (including D4) said and did in relation to “ending one-party dictatorship” was so said and done in the hope that through other persons, this proposition would be put into action. However, she disagreed that the Alliance (including D4) intended to incite other persons to overthrow or undermine the leadership by the CCP by means in breach of the Constitution; 

(3)  The Alliance (including D4) would be glad to see or intended with other persons to use means in breach of the Constitution to overthrow or undermine the leadership by the CCP;

(4)  The Alliance (including D4) intended to incite other persons to overthrow or undermine the fundamental/basic system of the country by means in breach of the Constitution;

(5)  The Alliance (including D4) intended to incite other persons to overthrow the body of central power by means in breach of the Constitution;

(6)  The Alliance (including D4) had all along been advocating “ending one-party dictatorship”, one of the Five Action Agendas, in the hope that other persons, together with the Alliance, would set the overthrowing or undermining of the leadership by the CCP as a long-term goal; 

(7)  The Alliance (including D4) was waiting for an opportunity to overthrow or undermine the fundamental/basic system of the country;

(8)  The Alliance (including D4) was waiting for an opportunity to overthrow the body of central power;

(9)  If others could not overthrow the fundamental/basic system of the country or the body of central power in one go, then the Alliance (including D4) intended to progressively undermine the fundamental/basic system of the country under the leadership by the CCP. D4 pointed out that the aforesaid was neither the progressive nor the ultimate goal of the Alliance; and

(10)  During the charge period (1^st July 2020 to 8^th September 2021), D4 and other defendants incited other persons to organize, plan, commit or participate in acts by means in breach of the Constitution to achieve “ending the leadership by the CCP” so as to overthrow or undermine the fundamental/basic system of the country or the body of central power.

S.4  Re-examination

376.D4 wished to clarify three points. Firstly, after the NSL had come into effect, the Alliance did not intentionally discuss whether “ending one-party dictatorship” was illegal, as this was a pseudo-proposition from the Alliance’s perspective. Even if the Alliance used different phrases such as “end one-party dictatorship”, “construct a democratic China” or “end dictatorship, resist authoritarianism, transit to democracy”, the demand of the Alliance was the same; intentionally discussing whether the words “end one-party dictatorship” were illegal would be very strange and unreasonable. D4 alleged that the topic of whether “ending one-party dictatorship” was illegal did come up, but it was not a question that actually existed, so it was not intentionally discussed.

377.Secondly, the Alliance never purposely advocated the Five Action Agendas (including “end one-party dictatorship”) as democracy was the core value of Hong Kong with societal consensus, and there was no need to advocate this on purpose. As a federation, the Alliance’s Agendas were merely expressing the broadest common ground within civil society, and there was no need to specifically advocate this. After the passing of the NSL, what was required of the Alliance was only to honestly express who they were, what values they believed in; it was not that these basic ideologies of democracy needed to be advocated, just that living in truth became more difficult. D4 expressed that they were not encouraging anyone to do anything. At that time, the environment became difficult suddenly. They were merely stating and reiterating the stance of the Alliance, never finding the need to specifically advocate it, as everyone believed in democracy.

378.Thirdly, she reiterated that the Alliance had never used “June 4^th” to incite “ending one-party dictatorship”. She stated that June 4^th was not a tool to be used by anyone, but a crime that the government had to face.

S.5  Further cross-examination by D2

379.Regarding the term “regime change” mentioned in the testimony of D2 during cross-examination by the prosecution, D2 further cross-examined D4 with the leave of the Court.

380.In relation to the third method stated in D3’s article “How to end one-party dictatorship”[217], D4 agreed that based on the literal meaning of the words, the first main point was that, as D3 had said, it was a peaceful movement; peaceful resistance, peaceful revolution, to be carried out in a peaceful manner. Secondly, unlike the first method, this method was formed by a bottom-up movement. “Bottom-up” meant that through the various approaches suggested in the civil movement, those in power would ultimately be pressured and political reform would then be achieved. Thirdly, the article emphasised that for such a bottom-up method to achieve political reform, the progress would be very slow, arduous and persistent.

381.In her testimony, D4 mentioned that the “reform” stated in the article referred to a significant political reform; in any event, it was going from dictatorship to democracy. D4 agreed that what she had referred to as a significant political reform was changing from a dictatorship system to a truly democratic political system.

382.D4 expressed that within the Alliance, including D2, D3, D4, the Chairperson or Vice Chairpersons, the term “regime change” was never discussed nor used; it was also not used in D3’s article. D4 agreed that what she had said about the term “regime change” was never discussed within the Alliance, and did not represent the stance of D2 and D3.

383.As to why D4 thought that from ordinary people’s understanding, a profound political change could colloquially be referred to as a “regime change”, D4 pointed out that it meant a thorough change of the entire political system, so it might be colloquially described as a “regime change”. In other words, a profound political reform, the evolution from dictatorship to real democracy, could be referred to as a “regime change” for ordinary people. When asked whether a profound political reform implied changing the leadership status of the CCP, D4 stated that it was not targeted at who took the lead, but rather directed at democracy in the system; it was never directed at the leadership by the CCP per se, but who took the lead should be chosen by the people. As to whether a profound political reform included the leadership status of the CCP under the Constitution, given that “leadership by the Communist Party of China” was clearly stated in the Preamble to the Constitution after its amendment, D4 expressed that the Constitution could not say what the people could choose.

384.D3’s summary of the third method in the article was “the dictators will compromise in the face of difficulties”. D4 agreed that D3 did not mention whether the final outcome of this movement concerned the CCP internally or other aspects. When asked whether in undergoing significant political change of the third method, the CCP might ultimately yield to the bottom-up civil pressure, compromise under such pressure, and then lead in a truly democratic manner, D4 said it was possible.

385.When asked what drove D3 to write the said article in the capacity of the Chairperson of the Alliance and have it published in the HK Alliance Dispatch in March 2017, D4 pointed out the Alliance had an annual theme every year, and the theme of that year was about “ending dictatorship”. She agreed that the passage of “in the course of peaceful resistance, surely there are always people who have to pay a price, be it their freedom, human rights or even their lives, in exchange for the awakening of society or even the leaders” in the article referred to what would happen in the process. When asked why there would be a cost of losing one’s life in peaceful resistance, D4 said that this was based on what had happened in history. They could only ask themselves to be peaceful, but could not anticipate by what means those in power would respond; the scenarios anticipated in the article was a judgment based on past experience. D4 agreed that when D3 wrote this article, the Mainland was still under dictatorship, and as a bottom-up pro-democracy movement with peaceful persistence, the could cause the Alliance to pay a price.

386.D4 agreed that the said article could be understood as the position of the Alliance in 2017; that is, to adhere to arduous and persistent non-violent resistance. She pointed out that up until the last moment, the stance of the Alliance had never changed, which was the consensus of everyone.

S.6  Further cross-examination by the prosecution

387.D4 confirmed that the annual theme of the Alliance in 2017 was “Vindicate June 4^th End dictatorial rule”. She disagreed that the Alliance had chosen the third method mentioned in the article, such that the things it intended to do constituted the offence of the present case.

T.  The 3^rd defence witness: Ms CHOI Suk-fong (“DW3”)

T.1  Examination-in-chief

388.DW3 is now aged 66, retired, and had been a reporter until 1990. In 1989, she was a reporter for Sing Tao Daily, and she was in Beijing conducting interviews between 27^th April and 5^th June of the same year. She pointed out that at the time, there was already a saying that opposing the leadership by the CCP was in breach of the Constitution. DW3 stated that she had experienced June 4^th in Beijing, and was the last reporter to leave Tiananmen Square.

389.DW3 became a volunteer of the Alliance after she came back to Hong Kong on 5^th June 1989, until she left Hong Kong in May or June 2018. After she came back to Hong Kong, she wrote some news reports as a reporter for Sing Tao Daily, and published a book together with other reporters, with an article written by her reprinted in a publication of the Alliance[218]. DW3 stated that she had gathered information about June 4^th for Sing Tao Daily and the Alliance, and the information she had gathered for the Alliance was later compiled and published as a feature book[219].

390.During the time when DW3 was a volunteer of the Alliance, her work included gathering information as well as assisting exiled pro-democracy activists who had arrived in Hong Kong from the Mainland settle down, taking care of them. In 2009, DW3 published a book and passed the objects she had been collecting about the 1989 pro-democracy movement to the Alliance in the hope that the Alliance would help her curate a commemorative museum. Subsequently, the Alliance placed some of the objects in the June 4^th Museum for display. The on-scene audio recording and its transcript[220] contained in the USB stick seized by the police from the June 4^th Museum were provided by her. DW3 was very grateful that the Alliance had helped her curate a commemorative museum, as she could not have done so by herself.

391.Apart from participating in the marches and assemblies in 1989, DW3 participated in the June 4^th candlelight vigils of the Alliance every year from 1990 to 2018 before she left Hong Kong. As a volunteer of the Alliance, she helped push trolleys, and distributed whatever she wanted to distribute in her personal capacity at the venue. She wished to collectively commemorate June 4^th and heal the wounds.

392.2019 was the 30^th anniversary of June 4^th. DW3 and some reporter friends published an anthology. She also came back to Hong Kong to record a video clip narrating June 4^th, which was played in the June 4^th Assembly of the Alliance in 2019; she herself participated in the June 4^th Assembly in the UK that year.

393.DW3 confirmed that she supported the Five Action Agendas of the Alliance.

T.2  Cross-examination by the prosecution

394.DW3 confirmed that she had never been a member of the Standing Committee of the Alliance.

U.  The 4^th defence witness: Ms SHAM Lai-fong (“DW4”)

U.1  Examination-in-chief

395.DW4 is now aged 69, a housewife, and not associated with any affiliates of the Alliance. DW4 expressed that she had participated as a citizen in the June 4^th candlelight vigils and the marches held in late May organized by the Alliance every year from the very first time to the last time in 2019, except for two years.

396.Regarding the June 4^th candlelight vigils, DW4 attended with her friends from the church or by herself, generally arriving there at 7 to 8 p.m. The vigils began at around 8 p.m. and ended at just after 10 p.m., and proceeded according to the sequence of events listed in the programme booklets. During the vigils, DW4 would hear live announcements and would sometimes watch the screen. Other people at the venue would chant slogans, including “construct a democratic China”. She did not like chanting slogans so she did not join in; for songs though, she would sometimes sing along. DW4 opined that the atmosphere of the vigils was generally calm, but some people would become emotional and cry. The reason why DW4 continued to attend the candlelight vigils was to mourn for June 4^th.

397.As for the marches, they were held on the last Sunday of May every year, mostly starting at 2 to 3 p.m. and lasting roughly for one to two hours. There were much fewer participants than the candlelight vigils, and the end point for the last 10 years was LOCPG in Western District. DW4 did not recall if there was a different theme every year. In the course of the marches, a vehicle took the lead and made announcements. Some people sang, some people chanted slogans, but DW4 did not pay attention to the content. She merely walked without chanting slogans. She sang hymns with her friends from the church on one occasion, and she sometimes held demonstration placards provided by the organizer, on which the Five Action Agendas were written. DW4 opined that the atmosphere of the marches was peaceful, as there were police officers maintaining order at the scene. The reason why DW4 participated in the marches every year was to express her concern for the family members of the persons related to June 4^th.

398.DW4 expressed that she agreed with the Five Action Agendas of the Alliance, because to construct a democratic China, the four preceding Agendas must first be completely fulfilled before the last Agenda, to “construct a democratic China”, could be achieved. Her agreement with the goals of the Five Action Agendas did not lead her to do anything, as she was just a housewife.

399.DW4’s understanding of “ending one-party dictatorship” was that a democratic society should give people the freedom to choose which political party they liked, but not that a particular party had to be ended; “end one-party dictatorship” did not say which party had to be ended either. If there was freedom to choose the ruling party, then it was a democratic society.

V.  The 5^th defence witness: Mr KWAN Chun-pong (“DW5”)

V.1  Examination-in-chief

400.DW5 is now aged 54 and works in the manufacturing industry. He participated in the march on 21^st May 1989, the date on which the Alliance was founded, and it was his first time coming into contact with the activities of the Alliance. His understanding at the time was that the Alliance was an organization formed by some well-known persons in society, the main purpose of which was to support the movement of the Beijing students. After June 4^th took place, the Alliance continued to organize activities in Hong Kong, which DW5 also participated in.

401.DW5 joined the Alliance as a volunteer on 31^st December 1989, and took up the role of a Standing Committee member of the Alliance between December 1998 and December 2014, running for office at the time as a member of the affiliate “Choi Shek Resident Service Centre”. Afterwards, he continued to be involved in the work of the Alliance as a volunteer and maintained his status as a group member, entitling him to attend meetings of the Alliance.

402.After 2018, DW5 was still a volunteer of the Alliance, mainly responsible for marshalling work at public activities as well as preparation before street activities and their operation. He was a marshal in the June 4^th Assemblies in 2018 and 2019, assisting in maintaining order at the venue and was responsible for distributing programme booklets and candles. The assemblies generally began at 8 p.m., with no entry time set by the Alliance.

403.The marshal team comprised members of the Alliance’s affiliates and volunteers in their personal capacity. They held conferences to discuss preparation work a week or two prior to the June 4^th Assemblies and liaised with the police. There were at least over a hundred marshals at the venue of the meetings, with marshal armbands or yellow vests for identification. While the assemblies were in progress, the marshals were responsible for order-related arrangements and crowd movement inside the venue, whereas the police would maintain order outside the venue. Both parties performed their respective duties and coexisted peacefully.

404.DW5 expressed that since he joined the Alliance as a volunteer, the Five Action Agendas had all along been there, although the Alliance did not explicitly explain what the Five Action Agendas represented or what their meaning was. In terms of words, the Five Action Agendas were presented through the publication, HK Alliance Dispatch, and the banners put up inside the venue of the June 4^th Assemblies. Insofar as DW5 recalled, the Five Action Agendas were not intentionally highlighted in the HK Alliance Dispatch or other documents of the Alliance; in any event, the Five Action Agendas had all along been there since he joined the Alliance up until the last moment.

405.According to DW5’s own understanding, the Five Action Agendas were interlaced, like the five Olympic rings, and were always chanted as slogans, with a particular chanting sequence every time. The consensus in the Alliance as to the order of the five Agendas was: firstly, to fight for “releasing pro-democracy activists”, as many people were imprisoned at that time; then, it was the demand to “reverse verdict on 1989 pro-democracy movement” – because the Alliance did not consider the 1989 pro-democracy movement a crime and it should therefore not be characterised as an unrest. Hence, the Alliance had all along put the first and second Agendas as the priority and acted with the first and second Agendas as the foundation and prerequisites. There was an order regarding the implementation of these goals, with the first Agenda as the priority all along since the Alliance put people first. When the first and second Agendas were in progress, the next step in the development would be to “investigate liability for massacre”, followed by “ending one-party dictatorship”, culminating in “constructing a democratic China”.

406.When DW5 was a Standing Committee member and a volunteer of the Alliance, “ending one-party dictatorship”, as far as he understood, referred to China being in a “one-party dictatorship”.

V.2  Cross-examination by the prosecution

407.DW5 alleged that he did continue to participate in the activities of the Alliance after 2019. He went to Victoria Park in 2020. He also attended the final extraordinary general meeting of the Alliance as a member group representative, and voted in accordance with the decision of his group on the issue of whether the Alliance should be disbanded.

408.DW5 did not remember if he had attended the 31^st (2019/2020) and 32^nd (2020/2021) general meetings in the capacity of a member group representative, but he agreed that the work reports passed in general meetings were about the work done in the previous year. He also agreed that D4 and others were elected as Standing Committee members because they were approved by a majority vote by member groups.

409.DW5 confirmed that between 2019 and 2021, the member group he represented did not express any view in any manner to the Standing Committee of the Alliance as to how the Five Action Agendas should be.

410.DW5 stated that each Agenda in the Five Action Agendas was equally important. They were intertwined and none could be dispensed with, although there was a sequence for the Alliance in terms of work. He was certain that the Alliance never gave up on any of the Agendas.

VIII.  Analysis of the evidence

W.  Prosecution witnesses

W.1  Police Superintendent CHOW Wing-yee Josephine (PW1)

411.The Court has considered the evidence of PW1 under cross-examination by the defence, and in the end accepts that she is an honest and reliable witness.

412.The Court accepts what PW1 said in relation to the consideration of the police in objecting to the holding of the June 4^th Assembly in 2020 and the reasons for such objection when she handled the application for holding the said Assembly. As to the fact that the police raised no objection to the June 4^th Assemblies held previously, the Court accepts what this witness understood to be the stance previously taken by the police regarding June 4^th Assemblies. There is no dispute that the police deployed officers to maintain order at the venue in the past.

413.The Court finds that the police, when handling the application for the June 4^th Assembly in 2020, objected to the said assembly due to the pandemic and out of concern for health and safety as shown by the testimony of the witness. The fact that the police raised no objection to the June 4^th Assemblies held previously and even deployed officers to maintain order at the venue could not have led the defendants to think or believe that the speeches and activities of the Alliance on “ending one-party dictatorship” were not in breach of the NSL after its implementation.

414.Nevertheless, the Court is of the view that PW1’s evidence does not assist us in dealing with the issues in the case.

X.  Defence witnesses called by D4

X.1  Ms CHOI Suk-fong (DW3)

415.The demeanour of DW3 when she was testifying in court showed that the June 4^th Incident which took place in 1989 still had an impact on her. The exhibits shown to her included: [D4-15][221], [D4-19][222], [D4-1][223], page 466 of TB2/SN76, [D4-32, 32A][224], [D4-27] ‒ [D4-31][225], [D4‑34][226], and TB4/SN45[227] etc.

416.The Court is of the view that her perception or understanding of the June 4^th Incident, as well as the articles written and materials gathered by her regarding the June 4^th Incident, do not assist in resolving the issues in the case. This is because the present case is not a political trial; what the Court takes into consideration are not topics such as democracy, the merits and demerits of political systems, the June 4^th Incident etc. Therefore, what DW3 said about her experience in Beijing during the June 4^th Incident in 1989 as well as her comments about the June 4^th Incident are not questions that the Court needs to deal with.

X.2  Ms SHAM Lai-fong (DW4)

417.DW4 had participated in June 4^th marches and June 4^th Assemblies organized by the Alliance for a long time over the years. The Court has taken into account DW4’s participation in these activities as well as her personal view on the Five Action Agendas of the Alliance as a supporter of the said activities. The Court opines that the view held by DW4 on the Five Action Agendas of the Alliance cannot represent that of other people receiving similar messages.

X.3  Mr KWAN Chun-pong (DW5)

418.DW5 had been a Standing Committee member of the Alliance, but he no longer held that post during the charge period. However, he still participated in the activities of the Alliance as a volunteer and a representative of the Alliance’s member group. The Court accepts DW5’s statement that both the Alliance and the police performed their respective duties and coexisted peacefully in the course of the June 4^th Assemblies in 2018 and 2019, and the said Assemblies were held smoothly.

419.DW5 pointed out that the Five Action Agendas of the Alliance were intertwined and it never gave up on any of the Agendas. The Court is of the view that if the correct interpretation of the “end one-party dictatorship” jointly advanced by the defendants is, as the prosecution said, intending to incite other persons to overthrow or undermine the leadership status of the CCP under the Constitution by unlawful (including unconstitutional) means, then even if the “end one-party dictatorship” Agenda was intertwined with the other four Agendas, it is of no help to the defence case.

420.We find that, what DW5 said about June 4^th Assemblies being held smoothly in 2018 and 2019 and police officers’ maintaining order at the venue of the Assemblies, could not have led the defendants to think or believe that their speeches and activities in relation to “ending one-party dictatorship” during the charge period did not involve inciting other persons to subvert the State power.

X.4  Brief summary

421.In summary, although DW3 to DW5 said they had all along never received the message that “ending one-party dictatorship” was tantamount to “ending the ruling status of the CCP” from the activities organized by the Alliance or the words and deeds of the defendants, the Court does not accept what they said in this regard. Moreover, the Court is of the view that their evidence is irrelevant to the charge; their views on the Five Action Agendas of the Alliance are also of no assistance in resolving the matters in dispute in this case. As we pointed out above, even if the incitee does not intend to or is not prepared to commit the crime, or the crime is not ultimately committed by the incitee, the inciter may still be convicted of the offence of “incitement”. After detailed and thorough consideration, the Court concludes that their evidence neither weakens the prosecution evidence nor helps the defence case.

Y.  Mr LEE Cheuk-yan (D2)

Y.1  D2’s background

422.The Court has considered the evidence of D2, and accepts the information about his background, including his coming into contact with the ideological trend of “knowing China and caring about society” in his school days and his inner journey of participating in the labour and grassroots work in Hong Kong. We also accept the background information about his work and him stepping into politics. D2 had served the HKCTU until April 2021, and his service for the Labour Party ended when the latter was disbanded in the same year. We accept that from 1980 to right before the 1989 pro-democracy movement, D2 cared about the human rights situation in China and participated in some relevant activities that he mentioned.

423.The Court has taken into account the evidence of D2 regarding the background of the founding of the Alliance in 1989, including his role in participating in the assemblies and marches at that time. The Court accepts D2’s evidence about being in Beijing between 30^th May and 5^th June 1989 and being detained when flying back to Hong Kong on 5^th June. As D2 said, from his detention to his release back to Hong Kong, he knew that many people had assisted in the process, and he felt that he was rescued by others. This has become his lifelong mission. He has to keep this movement going. D2 wants China to move towards the democracy he perceives in his mind, and the same applies to Hong Kong.

424.However, as stated previously, this case is not a political trial; what this Court needs to take into consideration are not topics such as democracy, the merits and demerits of political systems, the June 4^th Incident etc. Therefore, D2’s experience in Beijing during the June 4^th Incident as well as his comments about the June 4^th Incident are not questions that the Court needs to deal with. The relevant evidence of D2 will only be used to understand the background of his participation in the Alliance’s work and social activities, but the Court will not make any findings as to the facts or the rights and wrongs of those matters. Similarly, the Court will not make any determination or comment on the rights and wrongs of the events underlying D2’s words and deeds directed at the CCP, as this is not the task of the Court. Furthermore, D2 has the freedom of opinion and expression as protected by the BL and the HKBOR, which the Court respects. Nevertheless, in our view, it is an objective fact that D2 harbours negativity and hostility towards the CCP and/or the Central Government regarding those events. As to whether this is relevant to the charge of this case, we shall return to this point later.

Y.2  The Constitution and “end one-party dictatorship”

425.D2 emphasised in his evidence that a month after the amendment of the Constitution in 2018, when reporters had asked WANG Zhimin, the then Director of LOCPG, if the “end one-party dictatorship” slogan could still be chanted in Hong Kong in the future, he had replied that this was a “pseudo-proposition” because there was no such statement of “one-party dictatorship” in the Constitution, and the CCP did not see itself as a “one-party dictatorship”[228]. In our view, the reply given by Director WANG at that time was merely a response to the question posed by reporters, rather than exploring the issue of whether the “end one-party dictatorship” Action Agenda was unconstitutional in nature.

426.The Court has considered D2’s elaboration on the Alliance’s “ending one-party dictatorship” in his evidence. We notice that the word “dictatorship” also appears in the Preamble to the Constitution, for example, “the people’s democratic dictatorship”, “dictatorship of the proletariat” etc., but the word clearly does not carry any derogatory connotation in the Constitution. On the contrary, from the context of the words, the correct understanding of “ending one-party dictatorship” in the Five Action Agendas of the Alliance clearly carries a derogatory connotation. According to D2’s own account, “dictatorship” is the antithesis of democracy: “dictatorship” is putting the executive, legislative and judicial branches under the control of those in power, silencing and punishing people for speaking out, thereby depriving them of freedom and rights. D2 stated that to “end one-party dictatorship” and move towards democracy was to let people decide if the CCP should take leadership and who should lead them. Although D2 agreed that the CCP was the current ruling party in China, he remarked that the CCP had already departed from the multiparty cooperation as stated in the Constitution. D2 emphasised that the Alliance had never stated whether the CCP should lead the country. He testified that this matter should be left to the people for discussion “after the formation of civil society”, and since a civil society had yet to be formed, there was no way to even begin discussing whether the CCP should take leadership.

427.This Court rejects what D2 has stated above. We are of the view that his testimony on this topic was merely for obscuring and downplaying the purpose of the speeches and actions of the Alliance. The evidence shows that since the Alliance was founded, it had been engaged in speeches and activities that advocated and supported the Five Action Agendas the whole time with no interruption. The reference of D2 to civil society not yet being formed would only have an impact on the effectiveness of the speeches and activities of the Alliance, but would not affect the actual goals of its Action Agendas. One could not say that since civil society had not yet been formed, the Alliance would not be able to hold any activities to advocate and support “end one-party dictatorship”.

428.Even though D2 kept emphasising that Article 2 of the Constitution provides that “all power belongs to the people”, when asked whether all along the Alliance and he personally did not wish the CCP to continue to rule, he disagreed, adding that it should be up to the people to decide and that he was in no position to agree or otherwise. Certainly, D2 was entitled to have his own views as to whether he wished the CCP to continue to rule; however, he was unwilling to state his stance directly under cross-examination. When asked about Article 1 of the Constitution, D2 deliberately tried to evade the express words therein of “leadership by the Communist Party of China”, and instead stated that the gravamen of the provision was “all power resides in people” and “people leading the country”. From the Court’s observation of D2, he was merely covering up the unconstitutional nature of the Action Agenda of “ending one-party dictatorship” as well as his animosity towards the CCP with the answer that it was “up to the people to decide”.

429.The Court is of the opinion that as the Constitution expressly states that the people have chosen the CCP to lead the country in the long run, the Action Agenda of the Alliance is clearly at odds with the relevant provisions of the Constitution. This Court does not accept D2’s testimony that, of the Five Action Agendas, “end one-party dictatorship” was not tantamount to ending the leadership status of the CCP. We have no doubt that the word “end” is clearly directed at a situation that still exists. From the time the Action Agenda of “ending one-party dictatorship” came about up to the charge period, the CCP had been the only ruling party of the country and no other political party had ever held power.

Y.3  Mainland literature cited by D2

430.This Court does not think that the following literature cited by D2 is of any assistance to the issues of this case:

(1)  The article “On Coalition Government” from Chapter 1 of Selected Works of Mao Tse-tung (Volume III)[229]. In that article, the reference of “one-party dictatorship” is directed at the circumstances at the time when the article was published, namely the circumstances of the country while being under the rule of the Kuomintang before the PRC was founded. As far as the present case is concerned, reference should be made to the constitutional framework after the 2018 Amendment as well as the social context during the relevant charge period. With the passage of time and circumstances having changed, the inciter could not have anticipated or reckoned that the incitee would interpret the speeches and activities of the Alliance through the lens of the article “On Coalition Government” from the last century;

(2)  Prisoner of the State: The Secret Journal of Zhao Ziyang, written by the late General Secretary of the Central Committee of the CCP, ZHAO Ziyang[230]. That article did not discuss or submit on the principles of the Constitution;

(3)  An article published in 1979 titled “All Democratic Parties and Federations of Industry and Commerce are Political Forces Serving Socialism”, from Selected Works of Deng Xiaoping (Volume II)[231]. Although that article referred to “multiparty cooperation”, it was on the premise of “under the leadership of the Communist Party of China”. The article also pointed out that the democratic parties were the “allies” of the CCP. In fact, D2 also indicated that “the system of multiparty cooperation” was not the ultimate system the Alliance would like to achieve. He said that eventually it would be up to the people to decide if they would accept “the system of multiparty cooperation”.

431.D2 cited the aforesaid literature as well as “Speech delivered by Premier WEN Jiabao at Tsinghua University (Full Text)”[232] in support of his contention that there were many matters on which the Alliance and the Central Government did not take an opposing stance; however, all along, the Alliance had not been in dialogue with the Central Government. D2 pointed out that during a visit to the Mainland with the LegCo, he had made the request of “reverse verdict on 1989 pro-democracy movement, rehabilitate June 4^th” to Zhang Dejiang, the Secretary of the Guangdong Provincial Party Committee. Be that as it may, they did not engage in communication by making use of the common grounds between the two sides as a starting point.

Y.4  D3’s articles

432.In respect of the article “How will China change: by reform or revolution?”[233] published by HO Chun-yan (D3) on behalf of the Alliance, although the article might involve the topic of amending the Constitution, D2 under cross-examination agreed that it did not, directly or indirectly, demand for an amendment of the part relevant to “leadership by the CCP”. He also agreed that the Alliance had never proposed to end or change the CCP’s leadership status by way of constitutional amendment.

433.This Court has not overlooked the article “How to end one-party dictatorship”[234] written by D3 (as the then Chairperson of the Alliance), in which he set out three methods for ending the rule of the current regime:

“Based on historical experience, the end of an authoritarian regime inevitably involves one of the following three pathways:

1.  The leader initiates self-reform and relinquishes power to achieve democracy.

2.  A violent revolution overthrows the dictatorship.

3.  Peaceful resistance from civil society forces those in power to continuously reform, achieving democratic transition.”

In respect of the third method, D3 proposed:

“Arduous and persistent non-violent resistance

The realisation of the ‘third wave of democracy’ at the end of the last century lay in the fact that the people’s continuous, peaceful and rational resistance successfully forced the ruling authorities to compromise and reform, thus gradually moving towards democratic transition. This type of social resistance takes diverse forms: from assemblies, marches, demonstrations and petitions by dissidents and human rights activists to online connections, joint petitions, online exposure and criticism and the struggles of rights defending lawyers both inside and outside the legal system, all of which have become a force driving for democratic development. In the course of peaceful resistance, surely there are always people who have to pay a price, be it their freedom, human rights or even their lives, in exchange for the awakening of society or even the leaders. More often than not, such reforms happen very slowly and are limited in scope; yet when changes have accumulated to a certain extent, they become irreversible and push towards the tipping point for a major transition. Historical experiences of ‘peaceful revolution’ successfully forced out by citizens’ peaceful resistance include the Philippines, South Korea, Taiwan and recently, Myanmar. The most important objective of peaceful resistance is to promote the ripening of the societal conditions and enlightenment of the people to form a civilised culture and societal consensus. By then, the army and the police dare not easily resort to violent repression, and the dictators will compromise in the face of difficulties.

This takes arduous and persistent resistance, and even more, people with ideals, resolve, courage and endurance to organize the movements.

Conclusion

At where we are now, at least we can provide some support to the democratic movement in the Mainland. Forces driving for progress in democracy in Hong Kong, in so far as is possible, provide moral support to the rights activism in the Mainland. This includes exchanging information and voicing out support through public opinion, all of which hold positive significance. Civil power around the world, representing civilisation and progress, are consolidated through NGOs. Together they work for changes in culture, thoughts and values, overthrow authoritarian regimes around the world and ensure that democracy, human rights, freedom and the rule of law will become new positive outcomes that sweep through the world.”

434.It was mentioned in the article: “In the course of peaceful resistance, surely there are always people who have to pay a price, be it their freedom, human rights or even their lives, in exchange for the awakening of society or even the leaders …”. This shows when it comes to the third method of “arduous and persistent non-violent resistance”, the judgment of D3 (as the then Chairperson of the Alliance) was that, there would always be people who had to pay a price. This Court is certain that what was stated above represented not only D3’s personal opinion but also the stance of the Alliance, namely, that it hoped and foresaw that some supporters of the Alliance would carry out the Action Agenda of “ending one-party dictatorship”. The Standing Committee members believed and anticipated that, even if such means were not violent, they would definitely be prohibited by law, and therefore someone would have to pay a price for that. Although this article was written in 2017, the evidence shows that the stance of the Alliance as expressed in the article remained unchanged after the amendment of the Constitution in 2018 and the enactment of the NSL in 2020.

435.D2 asserted that the Alliance merely played a supporting role and did not seek to instruct the people of China to advocate for constitutional amendment. This Court opines that this shows the stance adopted by the Alliance (including D2), which was that despite the absence of what they referred to as “civil society” in the Mainland, the Alliance would still support the demands put forward by the people in the Mainland in relation to “end one-party dictatorship”, for instance the Charter 08 Movement. In respect of this point, although this case does not involve consideration of violence or threat of violence, as we explained above, any means (other than by amending the Constitution) intending to bring an end to the leadership status of the CCP under the Constitution would be unconstitutional and unlawful (basis 1). Though D2 claimed that the Charter 08 Movement could be regarded as a constitutional amendment movement, and he also stated that the Alliance supported any means that did not involve violence or threat of violence for achieving the goal of “ending one-party dictatorship”, however, constitutional amendment was merely one of the means, not the only means, supported by the defendants for achieving “end one-party dictatorship”. All along, all the relevant activities held by the Alliance (such as assemblies, memorial events and media interviews during the charge period) were clearly not for pushing for constitutional amendment. Moreover, this Court has no doubt that, following the failure of Charter 08, the defendants could not have believed that there would be movement of constitutional amendment originating from the Mainland to achieve the goal of “ending one-party dictatorship”.

Y.5  D2’s attitude towards the CCP

436.This Court has not overlooked D2’s assertion that he did not wish more people to harbour hostility against the CCP. He claimed that he hoped that the public would make demands of the CCP and the CCP would respect human rights. However, we are of the view that his testimony in this regard was obviously at odds with the evidence of what he had said that was directed at the CCP. Examples of the hostile criticisms made by D2 against the CCP and the Central Government include:

(1)  On 16^th June 2018, while attending a meeting of an organization known as “Democratic Party of China National Committee”, D2 said the young people in Hong Kong felt that they would face repression from the CCP and be left with no hope, therefore they had to come out to fight for it. As to how to “shake up” the CCP, D2 appealed to people of all generations to join forces together to resist, to exert pressure on the CCP, and that only then would there be a way out and hope. D2 expressed that he did not know if demonstrations, marches or protests could “shake up” the CCP, but by doing so, they would become an encouragement to the protestors in the Mainland. As to whether the CCP would fall, D2 remarked[235]:

“Of course, I dare not say whether it can shake it up in the end; it is because, to be frank, the CCP seems very steadfast at the moment. Yet, the CCP has to – I would like to put it this way – it could fall any moment! We have no idea when it will fall, hopefully that will be the case! However, to be frank, we have no idea at all what we can do to bring about its fall, but the primary thing is we have to remember this resistance …”

(2)  In the online June 4^th Assembly held by the Alliance in 2020, D2 indicated that the Alliance supported those who were arrested in Hong Kong for taking part in the resistance. He even referred to rioters as “comrades brutally beaten by black cops” and “those who sacrificed themselves”[236].

(3)  On 1^st October 2020, during a demonstration held by the Alliance outside the LOCPG, D2 stated publicly[237]:

“No National Day Only National Mourning. Today is the so-called National Day, named by the Chinese Communist Party, but there is nothing to celebrate, Chinese Communist Party has stolen the whole China in the name of dictatorship to continue their rule, without any democracy, without any respect of human rights, without any freedom for the people, without any rule of law, so there’s nothing to celebrate.”

437.Regarding the “June 4^th memorial activities” held by the Alliance at Victoria Park, this Court fully respects the freedom of expression of the defendants. We also have to emphasise that there was nothing wrong in holding June 4^th vigils for commemorating the June 4^th Incident. Over the years, such memorial activities had been conducted with the assistance of the police and had not been prohibited. However, should the organizer intend to incite or provoke sentiments of disgust or hatred against the State amongst the attendees through the activities, with a view to turning it into a driving force for overthrowing the leadership by the CCP, that would be a different matter.

438.Between 2019 and 2020, Hong Kong witnessed multiple riots triggered by the “anti-ELAB” unrest. At the assembly in the “June 4^th memorial activity” in 2020, D2 said the following while reading out the official declaration[238]:

“Assembly declaration of the candlelight vigil that marks the 31^st anniversary of the June 4^th Incident. The truth is like a mirror that reveals the true nature of turpitude; the turpitude of the regime is laid bare for all to see. An authoritarian regime that rules through lies fears nothing more than having the truth exposed by its people. In the past, the ‘June 4^th’ massacre left the streets stained red and the square drenched in blood; today, black cops run rampant in Hong Kong, rampaging and persecuting protesters. At this very moment, the pneumonia outbreak in Wuhan is spreading across the world and nearly 300,000 people have perished from the disease. It has always been the practice of the CCP to hide the truth and report false information, ceaselessly inflicting great calamities upon humanity. Give me liberty or give me death. Freedom is a fundamental human need and the basis of all human rights. The rule of law safeguards the people’s freedom. Democracy is the political embodiment of the people’s freedom. The history of the CCP is precisely a history of repression of freedom and a history of the people’s resistance against tyranny.”

“Nor will the people forget those who got arrested in Hong Kong for fighting for freedom, the comrades brutally beaten by black cops, and the unnamed ones who sacrificed themselves. Tyranny is like a virus, infecting and threatening all of humanity. People across the world who embrace the values of freedom must listen to the call of their conscience and stand against the virus of tyranny. Whilst the world was grappling with the virus and the pandemic, the CCP suddenly drew its sword, having the NSL—an instrument of tyranny—passed by the NPC and imposed upon Hong Kong, thereby completely ruining ‘One Country, Two Systems’ and suppressing the freedoms of Hong Kong people. In the people who are resisting, we see hope. On the path of resistance, we have witnessed how one life can inspire another. People on the Mainland have fearlessly kindled a light with their very lives. The candlelight at Hong Kong Victoria Park has never gone out in the past thirty years, it continues to shine brightly. Let us raise our candles together today, emitting an everlasting light, igniting the fire of resistance against tyranny, and fighting to the end for the truth; fighting to the end for freedom; fighting to the end for life; opposing the NSL and incrimination of speech. Release pro-democracy activists, reverse verdict on 1989 pro-democracy movement, investigate liability for massacre, end one-party dictatorship, construct a democratic China—these Five Action Agendas, for which we will fight to the end.”

439.Notwithstanding D2’s freedom of speech, this Court also has to consider the objective effect the declaration might have on the target audience. Although the June 4^th Incident had taken place 30 years before that, we have no doubt that as far as those people who already harboured dissatisfaction or even disgust towards the CCP and the Central Government were concerned, their negative attitudes not only would continue but also intensify. Objectively, given the social climate at the time, what D2 said might also attract some people who in the first place had no deep impression or strong stance on the June 4^th Incident. Based on the evidence before us, we are certain that particular official declaration must have obtained prior consent from the Standing Committee of the Alliance. In other words, the Standing Committee members of the Alliance intentionally compared the June 4^th Incident with the anti-ELAB unrest, apparently for the purpose of recruiting a new generation of supporters to join their camp of “ending one-party dictatorship”.

440.This Court refuses to accept that the Standing Committee members of the Alliance might have believed that, amidst the hostile atmosphere they created, there was a possibility of achieving a peaceful dialogue with the Central Government or furthering constitutional amendment. Neither does this Court accept D2’s testimony that he harboured no hostility towards the CCP. We have sufficient reasons to believe that D2 obviously wished to influence the attitudes of the Alliance’s supporters towards the CCP and the Central Government by advocating the Action Agenda of “ending one-party dictatorship”.

Y.6  D2’s views on breaking the law for resistance

441.Regarding the NPC’s decision to enact the NSL, D2 said the Alliance had discussed the impact of the NSL on human rights in Hong Kong and had issued a statement about it. Yet, the Alliance had not discussed whether the NSL would affect the Alliance itself, because “the Alliance did not think what they did was against the law, so there was no need to discuss.” This Court finds it unbelievable for the following reasons:

(1)  In the aforesaid article “How to End One-Party Dictatorship”, D3 mentioned in the conclusion “subverting dictatorial regime in the world”, which, from the context, was obviously referring to overthrowing the ruling status of the CCP. This Court is of the view that even though the third method mentioned above was peaceful and non-violent, this type of civil resistance method in which “the army and the police dare not easily resort to violent repression, and the dictators will compromise in the face of difficulties” would definitely involve acts of resistance that might bring dire consequence to the protestors.

(2)  In May 2020, the legislative process for the NSL had already commenced. Between 18^th and 23^rd May, at a press conference, D2 stated that he was aware that the Five Action Agendas advocated and publicised by the Alliance (including “end one-party dictatorship”) might violate the offence of subversion[239].

(3)  On 24^th May, during a march and demonstration organized by the Alliance, in addition to leading the crowd to chant slogans “end one-party dictatorship”, “end dictatorship” and “end to one party rule”, D2 also stated that he was aware that the Five Action Agendas of the Alliance (including “end one-party dictatorship”) might violate the offence of subversion or incitement. On the same occasion, he said[240]:

“Some say that our Five Action Agendas are nothing but a challenge to the offence of subversion under the NSL, …, but we Hong Kong people will continue to exercise our freedom to speak our minds, to state that we demand democracy for the whole of China, that everyone should enjoy democracy, and that dictatorial regime should exist no more in any part of China. We will continue to insist on our stance in this regard.”

This Court is of the view that when D2 referred to the “dictatorial regime that should exist no more in China”, it was obviously directed at the ruling of the CCP.

(4)  On 28^th May, D2 publicly stated during an interview that the Alliance absolutely would not accept the NSL and would uphold the Action Agenda of “ending one-party dictatorship”[241]:

“Will we continue to chant end one-party dictatorship? Of course we will. I am chanting it now, end one-party dictatorship. I will chant end one-party dictatorship on the night of June 4^th and I will chant end one-party dictatorship in the future. We do not accept the NSL, we Hong Kong people should be entitled to our freedom of speech, our freedom of assembly. We absolutely, absolutely would not accept the NSL, which is illegally imposed on Hong Kong by the NPC.”

(5)  On 1^st June and 4^th June, during an interview at Victoria Park, D2 said that the Alliance would continue to uphold the statement of “ending one-party dictatorship”[242].

This Court is of the view that D2’s speech as set out above must be related to the NSL which was being drafted at the time.

Y.7  After the promulgation of the NSL

442.This Court refuses to accept that the Alliance and its Standing Committee would have thought that they would not be in breach of the newly enacted NSL because the police had never opposed or banned its activities over the past 30 years or so. The objective evidence shows that they just obstinately ignored the impact of the NSL on the activities of the Alliance.

443.As far as D2’s case was concerned, even after the implementation of the NSL, his stance on “ending one-party dictatorship” still remained entirely unchanged:

(1)  On 1^st July 2020 in Hong Kong, whilst testifying online before the U.S. House Committee of Foreign Affairs, D2 said that after the implementation of the NSL, many people asked whether the Alliance’s Action Agendas (including “end one-party dictatorship”) would be regarded as subverting the State power. He stated that, with the destruction of one country two systems and the rule of law, Hong Kong people had to retain the will to resist in the face of rule of fear. He said they would not be intimidated. D2 expressed that as the Chairperson of the Alliance, he was frequently asked by the media whether the Alliance might, because of its Agenda of “ending one-party dictatorship”, be regarded to have undermined China’s system and be disbanded for violating the NSL. He said that the Alliance would hold on to its principles and would not retreat. It would continue to run and organize activities that had been organized previously. Also, the June 4^th Museum would not move out of Hong Kong[243].

(2)  On a day between 23^rd August and 1^st October 2020, in Hong Kong, D2 conducted an exclusive interview with a program called “Precious Dialogues” in his capacity as the Chairperson of the Alliance. Apart from making some negative criticisms against the State, he expressed that the Five Action Agendas of the Alliance, “end one-party dictatorship” in particular, would very easily cross the red line of the NSL, but what was important was the Alliance would still hold on to its Five Action Agendas. To protect the entire movement, the Alliance would never back down and never retreat. D2 also called on members of the public to continue what they had been doing. D2 expressly stated that during the course of continuous resistance, different people would have to pay different prices, but he believed it would be worthwhile because they were facing a dictatorial regime that had long oppressed the people and deprived them of their dignity[244]. This Court is of the view that what D2 said above shows his insistence on the Agenda of “ending one-party dictatorship”; in addition, it shows that he foresaw the protestors would pay different prices during the course, and the prices he referred to would definitely include the price one had to pay for breaking the law.

(3)  On 10^th December 2020, in a public event held in Wanchai by the Alliance and the Civil Human Rights Front, D2 publicly requested the UN High Commissioner for Human Rights to be concerned about the alleged issue of torture in the Mainland and HKSAR, which he claimed existed. He also expressed that after the implementation of the NSL, the Alliance would still chant its Five Action Agendas[245].

(4)  On 6^th February 2021, the Alliance had put up a banner that read “End one-party dictatorship. Construct a democratic China.” at the Victoria Park Chinese New Year flower market stall[246].

(5)  On 21^st February 2021, D2 and D3 spoke at a press conference held by the Alliance at the June 4^th Museum. D2 indicated that his “ultimate goal is to ‘end one-party dictatorship, construct a democratic China’ ”[247].

444.This Court refuses to accept that D2 genuinely and honestly believed that the supporters of the Alliance would not use unlawful means to end the CCP’s rule. Although D2 (as the then Chairperson of the Alliance) supported any means other than by violence or threat of violence to achieve the goal of “ending one-party dictatorship”, if the Standing Committee members had really been of the view and had agreed that the only lawful means was constitutional amendment, it was inconceivable that they would have failed to state this explicitly for all these years, and instead chose to express their assertion in such vague terms as “any means other than by violence / threat of violence”. Furthermore, we do not accept D2’s statement that the Alliance merely wished people to take part in activities such as signing petitions and sending Christmas cards to imprisoned pro-democracy activists in the Mainland, and would not tell them to actually carry out the Action Agendas of the Alliance.

445.As mentioned above, the Alliance (including D2) had regarded the CCP with hostility for years. This hostile sentiment was repeatedly revisited and intensified at the June 4^th candlelight vigils organized by the Alliance over the years. Though this might not be the main objective of the memorial activity, that was the objective effect and the Standing Committee of the Alliance (including D2) must have been aware of that. Later in 2019 and 2020, the “anti-ELAB movement” broke out in Hong Kong and turned into multiple city-wide riots. In spite of all the efforts of the government and the police to maintain stability, it took a long time before the turmoil finally died down. In the online June 4^th Assembly held by the Alliance in 2020, D2 added fuel to the fire by commending those who were arrested for taking part in the “anti-ELAB movement” and referred to them as “those who were arrested for fighting for freedom, the comrades brutally beaten up by black cops and the unnamed ones who sacrificed themselves”[248]. This shows that he knew some Hong Kong people would go so far as to use unlawful means to achieve their goals in the resistance. In that case, he also must have anticipated that some of the Alliance’s supporters would carry out the Action Agenda of “ending one-party dictatorship” in Hong Kong by means that included unconstitutional and unlawful ones.

446.This Court is certain that D2 knew that the supporters of the Alliance would clearly feel its hostility towards the CCP and be influenced by it through the activities organized and the speeches made by the Alliance.

Z.  Ms CHOW Hang-tung (D4)

Z.1  D4’s background

447.This Court has considered D4’s evidence. We accept what D4 said about her background, including the reason for her joining the Alliance. According to D4, she had since childhood followed her mother to attend the June 4^th candlelight vigils organized by the Alliance, where she felt the atmosphere and listened to the messages at the venue. We are of the view that D4 is a living example of how the speeches and activities of the Alliance could influence the participants.

448.After graduating from university, D4 had worked at the Alliance for six months before serving as a volunteer. In late 2014, she was elected as a Standing Committee member of the Alliance. In late 2015, she became the Vice Chairperson of the Alliance until its disbandment in 2021.

Z.2  D4’s attitude towards the CCP

449.The above analysis of the Court regarding how to understand D2’s negative and hostile criticisms of the CCP and the Central Government, as well as the effect of those criticisms on the target audience, is in essence also applicable to D4.

450.D4 confirmed that to both the Alliance and herself, “end one-party dictatorship” represented a judgment of the current situation as well as a direction for action. Simply put, she had no dispute that “one party” in “end one-party dictatorship” referred to the CCP, but she asserted that this Action Agenda was meant to end the unlawful state of affairs where those in power (namely the CCP) were not bound by the law. D4 also contended that it had never been the Alliance but the CCP that was truly capable of and was truly subverting the State power.

451.This Court is of the view that D4 deliberately evaded and twisted the meaning of the “fundamental system of the People’s Republic of China” under Article 1 of the Constitution. Likewise, she deliberately twisted the functions and powers of the NPC as set out in the first paragraph of Article 62 of the Constitution, reducing the NPC to nothing more than a “rubber stamp” of the CCP, thereby strengthening the stance of “sovereignty of the people” which she insisted on. This Court is certain that D4 did not believe the NPC, which she disparaged as a “rubber stamp”, would duly perform the functions and exercise the powers vested in it by the Constitution.

452.This Court is of the view that D4 exhibited immense hostility towards the CCP while giving her testimony. This could be seen from her referring to the Alliance and herself as having no power or status, not in a position to directly “bring the CCP to justice”. From the evidence, D4’s attitude when she made speeches against the CCP on various occasions before the charge period was consistent with the attitude she exhibited while giving her testimony:

(1)  In the June 4^th Assembly in 2018, D4 said in the official declaration[249]:

“What is ‘end one-party dictatorship’ about? It is simply a demand for party alternation, returning the power to the people, genuine democracy.”

Even taking into account what D2 and D4 had said, namely “not excluding the possibility that the CCP can become the ruling party under party alternation”, we are of the view that “party alternation” as advocated by D4, is in no way equivalent to “the system of multiparty cooperation under the leadership of the Communist Party of China” as provided in the Constitution. One can see from the above statement that in D4’s mind, “end one-party dictatorship” of the Five Action Agendas was to substitute the “fundamental system” expressly provided in Article 1 of the 2018 Constitution with “party alternation”.

(2)  On the same occasion, whilst D3 and D4 were standing on the stage together, D3 in his speech referred to the Chinese Government as “an executioner who massacred its people”, “a cruel and ruthless regime is bound to fall and will not last forever”. When D4 read out the official declaration, she described “end one-party dictatorship” as the latest red line of Hong Kong. This Court is of the view that her words were specifically directing at Article 1 of the 2018 Constitution, which provides that leadership by the CCP was the “fundamental system”. D4 said[250]:

“What is end one-party dictatorship about? It is simply a demand for party alternation, demanding a return of power to the people, demanding genuine democracy.”

She expressly stated that the Alliance would not accept the restrictions imposed on the Action Agenda of “ending one-party dictatorship” by the Constitution:

“But now they are turning ‘end one-party dictatorship’ into something that cannot be mentioned, a red line that cannot be crossed. They want us to accept this reality: that China is in the hands of the CCP, that the CCP regime is to last forever. Now we are telling them in clear terms that we absolutely do not accept this. …, in fact, we are unable to provide a road map to you all; we are unable to tell you, ‘Just follow these steps and you can end one-party dictatorship’. But at the very least, we know what makes dictatorship last: it is the silence of every individual, the subservience of every individual, the acquiescence of every individual. Accordingly, to end one-party dictatorship, at least we must have the courage to step forward and say, ‘We want to end one-party dictatorship.’ ”

D4 even went on to assert that “end one-party dictatorship” would bring dire consequences, including imprisonment:

“In the Mainland, a lot of people have been thrown in jail for uttering these words. So, for those in Hong Kong, are we prepared to pay the price for saying this?”

She called on those attending the Assembly[251]:

“… But we must not belittle ourselves. Everyone who has the courage to say no, the courage to persevere, the courage to disobey, is setting an example for those around him, showing the whole world that dictatorship is not invincible and that resistance is not impossible. The final avalanche is powered by every single snowflake. End one-party dictatorship is more than a slogan; it is a promise—a promise to those who lost their lives 29 years ago, a promise to Mr LIU Xiaobo, who dedicated his whole life to democracy, and a promise to all those who have made contributions to and sacrifices for democracy in China and Hong Kong. What you have not yet finished, we shall certainly carry on. Release pro-democracy activists. … Reverse verdict on 1989 pro-democracy movement. … Investigate liability for massacre. … End one-party dictatorship. … Construct a democratic China. … Commemorate ‘June 4^th’. … Resist authoritarianism. …”

This Court has no doubt that the official declaration read out by D4 had obtained prior consent from the Standing Committee of the Alliance. Therefore, when she said “ ‘end one-party dictatorship’ was simply party alternation”, that represented the stance of D2, D3 and herself as well as that of the Alliance. From the above, it is evident that the Alliance’s Action Agenda of “ending one-party dictatorship” was not a demand for the CCP to lead the country pursuant to the provisions on the “fundamental system” as prescribed in the Constitution under the “system of multiparty cooperation”.

(3)  On 4^th June 2019, at the June 4^th Assembly held by the Alliance at Victoria Park, D4 read out a eulogy[252] before D3 read out the official declaration. Apart from describing the Central Government as “tyranny”, “perpetrator of violence”, “dictatorship” and “totalitarianism”, a significant part of the official declaration was devoted to supporting the Charter 08 Movement in the Mainland. The sentence “The claws of dictatorship have continued to extend to Hong Kong” was also mentioned. D2, D3 and D4 then immediately led the crowd to chant slogans such as “end one-party dictatorship” and “resist to the end”[253]. In light of the turbulent atmosphere of Hong Kong society at the time, the official declaration was obviously urging the target audience to put “end one-party dictatorship” into action at all costs.

(4)  On 4^th June 2020, at Victoria Park, D2, D3 and D4, together with others, chanted “end one-party dictatorship / end to one-party rule” multiple times[254].

(5)  On 4^th June 2020, during an online June 4^th Assembly held by the Alliance, D2, D3 and D4, together with others, chanted and promote slogans including “end dictatorship”[255].

Z.3  After the promulgation of the NSL

453.After the promulgation of the NSL, D4’s stance as stated above remained entirely unchanged:

(1)  On 6^th February 2021, the Alliance had put up a banner that read “End one-party dictatorship. Construct a democratic China.” at the Victoria Park Chinese New Year flower market stall[256]. When D4 explained the symbolic meaning of “Five Hydrangeas”, she said it not only echoed the “Five Demands” of Hong Kong at the time but also stood for the Five Action Agendas of the Alliance, one of which was “end one-party dictatorship”. D4 expressed that the Alliance would stand by Hong Kong people, fight together for the “Five Demands” as well as the Five Action Agendas upheld by the Alliance since 1989[257].

(2)  On 22^nd or 23^rd February 2021, in a media interview at the June 4^th Museum, D4 indicated that she would uphold “end one-party dictatorship”, which was a core Agenda of the Alliance[258].

(3)  On 15^th April 2021 “National Security Education Day”, in a demonstration activity jointly held by the Alliance and the LSD, apart from making negative remarks against the country, D4 expressed that during the few months after the implementation of the NSL, as many as 100 people had been made “political prisoners” by this “draconian law” in Hong Kong. She called on people from both China and Hong Kong to resist together and to break the dictatorship of the CCP. Together with the participants of the Assembly, D4 chanted slogans including “end one-party dictatorship” and “end CCP dictatorship”[259].

(4)  On 27^th April 2021, D4 was interviewed outside LOCPG in Sai Wan[260]. When asked if she was worried that the Alliance’s Action Agenda of “ending one-party dictatorship” might be alleged to be unlawful, D4 said one-party dictatorship had to end if a democratic China was to be constructed[261]:

“…We say we want democracy, we don’t want dictatorship, we want … (indistinct) you mull over the wording of the slogan, how to say you … (indistinct) We say we want to construct a democratic China, it’s not possible (to do so) without ending one-party dictatorship, so it’s not possible for me to take out the dictatorship; I want (noise) … (indistinct)”

(5)  On 9^th May 2021, at a street booth set up by the Alliance in Mong Kok, during a public event for promoting the 32^nd anniversary of the June 4^th Incident:

(a)  D4 called on members of the public to join the Alliance in distributing “candles of resistance”, stating that people cannot let the “political red line” come crushing down on them with no limit. She said the Alliance had its bottom line and would not be trampled upon arbitrarily[262];

(b)  She led the participants of the Assembly to chant slogans including “end one-party dictatorship”[263];

(c)  She said that given the situation at the time, certain things were inevitable unless they gave up democratic resistance or abandoned the fight for democracy, so they had to get ready. The Alliance would continue to uphold what they believed was reasonable. Should there be “unreasonable” repression or arrest by the Government, they were willing to bear the consequences[264]；

(d)  D4 indicated that given the situation at the time, there was an even greater need for everyone to step forward to “pass on the candle”[265];

(e)  When asked if she was worried that the slogan of “ending one-party dictatorship” of the Alliance might be alleged to be in breach of the NSL or other ordinances, D4 stated that the Alliance absolutely opposed one-party dictatorship, and regardless of whether the Alliance chanted “end one-party dictatorship” as a slogan or not, all propositions of the Alliance inevitably encompassed the phrase “ending one-party dictatorship”[266].

(6)  On 23^rd May 2021, at a street booth set up by the Alliance in Shatin, during a public event for promoting the 32^nd anniversary of the June 4^th Incident, D4, in the name of the Alliance, called on members of the public to light candles for others to see as well as to tell the regime that there were still a lot of people in Hong Kong who were unwilling to give in and persisted in continuing to resist dictatorship. She called on members of the public to light candles that signified “end dictatorship”, so as to let the regime know they feared no repression and would continue to resist. She also said[267]:

“Our determination in rehabilitation of the June 4^th Incident has not changed. Our determination in investigating liability for the massacre has not changed at all. We still stand by our Five Action Agendas and insist on ending one-party dictatorship.”

D4 further said[268]:

“This year, we have met unprecedented repression in the June 4^th memorial activities and quite a number of our fellow members are now in jail. However, that’s all the more reason for us not to give up, all the more reason for us to persist for the comrades and fellow brothers in jail, persist in this movement for rehabilitation of the June 4^th Incident, persist in this movement in pursuit of democracy.”

Despite the imprisonment of fellow members whom D4 referred to as “comrades”, she still encouraged the supporters to persist in the resistance. This Court is of the view that her speech was to encourage the supporters to disregard the legal consequences and to persist in the resistance even if it was against the law.

(7)  On a day between 27^th April and 24^th May 2021, while D4 took part in an online video interview in Hong Kong, she was asked how much room was left for the Alliance to survive after the implementation of the NSL. She said she had expected it to become less and less[269]:

“That is, the objects of the Five Action Agendas were fundamentally in conflict with the reality of one-party dictatorship.”

D4 expressed that the messages for the June 4^th Assemblies had to change with time, yet the core should remain to be the June  4^th Incident represented in different ways as circumstances changed. Therefore in 2021, the theme set down by the Alliance was the common fate of the democracy of China and that of Hong Kong. She called on the people of China and Hong Kong to fight for it together. She also mentioned that since 1989, the protestors in the Mainland had for years faced intensive repression, long-term imprisonment, capital punishment and death, yet they still persisted in joining the democratic movement, forming political parties and commemorating the June 4^th Incident every year. Hong Kong people could learn from the experience of the Mainland protestors[270].

(8)  On a day in 2021 but not later than 1^st June, D4 said in an exclusive interview at Admiralty that the Alliance would continue to uphold its stance of “ending one-party dictatorship”. She also indicated that notwithstanding the incarceration of D2 and D3, she would “step in” to continue their work[271].

(9)  In a telephone interview with Cable News on 12^th June 2021, D4 stated that the Alliance existed for the purpose of pursuing a democratic China, “(We) demand the end of one-party dictatorship, so if you’ve amended the Action Agenda, what on earth is the point of you still existing, right?”[272]

(10)  At a press conference held by the Alliance on 5^th September 2021, D4 indicated[273]:

“Our Five Action Agendas, maintained for 32 years to this day, ‘release pro-democracy activists, reverse verdict on 1989 pro-democracy movement, investigate liability for massacre, end one-party dictatorship, construct a democratic China’ are the spontaneous demands of Hong Kong people in the wake of the immense injustice seen in the massacre on June 4^th. … The campaign for rehabilitation of the June 4^th Incident has been the perseverance of the Hong Kong people for 32 years, whilst ending one-party dictatorship remains a mission that is far from being accomplished. … Therefore, our opinion is that the survival of the Alliance should not be discussed behind closed doors. We hope that our members and the wider public can participate in this discussion: Should we disband or not? What are the pros and cons? How can we best carry forward the Alliance’s mission to continue with this movement of reversing the verdict on June 4^th Incident, safeguarding the truth and fighting for democracy.”

454.From D4’s testimony, it can be seen that regardless of whether it was Charter 08 supported by the Alliance or “party alternation” referred to by D4 in connection with “end one-party dictatorship”, she was advocating party alternation. This Court does not accept D4’s testimony that “end one-party dictatorship” was not seeking to end leadership by the CCP. In the official declaration of the June 4^th Assembly in 2018, she referred to “party alternation” and that was obviously in breach of “the system of multiparty cooperation and political consultation under the leadership of the Communist Party of China” as prescribed in the amended 2018 Constitution. This Court is certain that D4 was aware that the “party alternation” she referred to went against Article 1 of the Constitution and the two were mutually exclusive. She in fact wished to end the core leadership status of the CCP which was established by the Constitution. After the implementation of the NSL in Hong Kong in July 2020, her stance on “party alternation” remained unchanged.

455.The relevant evidence in this case, in particular the public speeches made by D4, shows that although she knew protestors had been arrested on account of the NSL, she still called on both China and Hong Kong to “resist together” and “break the CCP dictatorship”. She obviously disregarded the restrictions imposed by the NSL[274]. The evidence also shows that D4 understood that the Action Agenda of “ending one-party dictatorship” of the Alliance carried the risk of breaching the NSL; nevertheless she still adhered to her beliefs, pursuing the path of political resistance without any concession at all. Furthermore, she deliberately compared the resistance activities of Hong Kong’s social movement at the time with the Five Action Agendas of the Alliance[275]. Even though D4 denied that she wanted to encourage others to put “end one-party dictatorship” into action, the evidence shows that not only did she “go all in” herself, she also encouraged other Hong Kong people to learn from the experience accumulated after years of resistance on the Mainland and persist in the resistance, notwithstanding the fact that she believed they might be at risk of long-term imprisonment as a result of this kind of resistance.

456.This Court has considered D4’s testimony that the Action Agenda of “ending one-party dictatorship” did not involve unlawful propositions and we reject what she said. D4 testified that she would not adopt the wording “fundamental system” in the Constitution, but she agreed that “end one-party dictatorship” would entail a fundamental change in the political system of the country, which in general terms could be understood as a “regime change”. On the other hand, D4 stated that for those parts of the Constitution that were not in line with the ideals of the Alliance, this could be resolved by constitutional amendment, which would be done by way of a process, and there would be no need to wait for a “regime change”. We are of the view that as far as the meaning of “end one-party dictatorship” was concerned, there was no material difference between the testimony of D2 and D4, except that D4’s stance was even more radical than that of D2.

457.During her testimony, D4 was asked whether the Alliance still remained hopeful for constitutional amendment after the NSL had come into effect. D4 said in reply that there was always hope. It was just that the timeline for achieving it had been extended, making it more difficult, more remote and more improbable. Notwithstanding that, she said the Alliance would still pursue this seemingly impossible 0.1% chance. However, this Court is of the view that after the NSL had come into effect, D4 must have believed that it would be virtually impossible to achieve “ending one-party dictatorship” through constitutional amendment.

AA.  The Alliance

458.The Court has considered the relevant evidence in the case and the submissions of the prosecution and the defence. The undisputed legal principle is that the Alliance can be charged and also be punished upon conviction: see NSL 31. The relevant legal principles on the criminal liability of the Alliance as a body corporate are set out in Part G above and will not be repeated.

459.The parties have no dispute regarding the incorporation, ongoing operation, income and expenditure records, bank account of the Alliance as a body corporate, and its status as the operator and property owner of the June 4^th Museum.

AA.1  The Alliance’s work reports

460.The Court observes that the organization profile[276]set out in the annual work reports of the Alliance did not contain words such as “overthrowing”, “undermining” or “subversion”. Nor did these words appear in the articles of association documents of the Alliance (D4-6). However, the Court considers that this is of little assistance in resolving the disputes in this case. More importantly, since 1991, the Alliance had adopted and advocated the Action Agenda of “ending one-party dictatorship” in their June 4^th Assemblies. This remained the same after the amendment of the Constitution in 2018 and the implementation of the NSL in 2020. The Court opines that the actual words and actions of the Alliance in public during the charge period revealed more clearly the nature of the Alliance’s activities than the work reports and articles of association of the Alliance.

AA.2  The Alliance’s website and YouTube footage 

461.The Court has considered the evidence of the Alliance’s website, the June 4 Memory & Human Rights Museum website and the YouTube footage[277], all of which was retrieved by the police from the Alliance’s website and online social media platforms. The aforesaid evidence can be cross-referenced with the other evidence in the case and can be matched with the video evidence. They reveal information about the Alliance, such as its Standing Committee members, its address and bank account. The public can watch the June 4^th Assemblies held by the Alliance over the years from the YouTube footage concerned. During the charge period, the content of the aforesaid platforms and footage continued to exist and could be viewed by the public. Based on the evidence before the Court, we are sure that the public speeches published on the aforesaid platforms prior to the charge period must have been preserved on the platform with the consent of D2 and D4 after the implementation of the NSL. We are also certain that during the charge period, similar speeches on the aforesaid platforms must have been published with the consent and permission of D2 and D4.

462.As regards the content published continuously on the website[278] by the Alliance during the charge period, which included the objects, political beliefs, ideologies of the Alliance, and news on the activities organized or to be organized by it and particulars of its principal, the Court is of the view that the event most relevant to the offence in this case was the online exhibition titled “A Common Fate A Shared Struggle ‘89 Democracy Movement and Hong Kong’ ”:

“Once, the June 4 candlelight vigil was a symbol of Hong Kong’s high degree of autonomy and freedom. Now, the sea of candlelight in Victoria Park may never reappear.

Once, the crime of ‘subverting State power’ was both familiar and remote. Now, the candidates who participated in the 2020 pro-democracy primary have lost their freedom and have been charged with this crime.

Once, Hong Kong was a safe haven for dissidents from the Mainland. Now, Hong Kong dissidents are being forced into exile one by one.

With the long shadow cast over the territory by the NSL and ‘one country, two systems’ now little more than empty words, Hong Kong and China are increasingly moving towards a common fate. When the lawyers for the Hong Kong 12 detained in China were not allowed to represent their clients, when reporters were convicted of searching for the truth, and when people were sentenced to jail for making the hand gesture of ‘five demands, not one less’, we know that on the path of resisting authoritarian power, the advantages previously enjoyed by Hong Kong people over Chinese people are rapidly disappearing.

A community oppressed by dictatorship will inevitably become a community of resistance due to common values and shared painful experience. Deprived of the barrier that ‘two systems’ provided as well as of civil liberties, Hong Kong people will remain committed, and the community of resistance will become stronger.

Over the past 30 years, the glittering sea of candles in Victoria Park, through rain and storm, has been a symbol of the conscience of Hong Kong people. Nowadays, arbitrary ‘red lines’ are everywhere, but even if the candlelight is scattered, it will not go out. We will always guard the candlelight, for the past and for the present, to connect China and Hong Kong. It is (a) form of mourning but also a form of struggle.”[279]

And the exhibition with the theme of “At the forefront of anti-totalitarianism: From June 4 1989 to the anti-extradition movement”.

“2020 is the 31^st anniversary of the ‘June 4^th’ massacre. Thirty-one years ago, Hong Kong people wholeheartedly supported the democracy movement in Beijing. It was not expected that starting from the summer of 2019, Hong Kong, from its Anti-ELAB to the present, would have to embark on its own battle against political violence and to defend freedom. Against the same totalitarianism, both movements faced very similar repression and indiscriminate violence; many people have compared ‘June 4’ with the ‘Anti-ELAB’ movement, and described the latter as ‘June 4^th 2.0’.”[280]

463.The Court opines that what is stated above is an example of the Alliance’s attempt to link the June 4^th Incident with the prevailing social atmosphere in Hong Kong at that time, aiming to rally or attract local protesters to join and bolster its camp. It is well known that the Anti-ELAB incident in Hong Kong at that time was not confined to criticising the government, it also involved numerous illegal acts of resistance. Under such social ambience, linking the June 4^th Incident with the Anti-ELAB incident indicated that not only did the Alliance want to instill its ideology of “ending one-party dictatorship” into the minds of its supporters, but it also encouraged them to put it into action.

AA.3  The HK Alliance Dispatch

464.During the charge period, issues of the HK Alliance Dispatch, apart from being available in physical text, were also available on the Alliance’s website for public download. Information such as the Alliance’s address, bank account numbers could be seen from the content concerned. The Court is certain that such content was published by the Alliance.[281]

465.The Court notes that the HK Alliance Dispatch (Issues 101 to 121) produced by the prosecution were all published prior to the amendment of the Constitution in 2018. The Court also observes that the proposition of “ending one-party dictatorship” did not change in the slightest due to the amended Constitution in 2018 or the implementation of the NSL in 2020. Regarding the article “How to end one-party dictatorship” in Issue 113 of the HK Alliance Dispatch in 2017, written by D3 in the capacity of the Chairperson of the Alliance, D4 agreed in her testimony that the third method, “arduous and persistent non-violent resistance” mentioned in D3’s article, was the method the Alliance adopted to achieve “ending one-party dictatorship”.

AA.4  The Alliance’s Facebook and Twitter

466.The Court has considered the relevant evidence of the Alliance’s Facebook[282]and Twitter[283], which was retrieved by the police from the relevant online platforms. Information such as the Alliance’s address, bank account numbers could be found on them. The Court is certain that these Facebook posts and tweets were published by the Alliance during the charge period. We consider that as communication tools, Facebook and Twitter offer a wider and faster reach than traditional websites.

467.After careful consideration, the Court agrees with the prosecution that much of the content of the Alliance’s Facebook and Twitter can be matched with the video evidence in TB4, for example, TB4/SN64-67, SN70-71, SN73-77. We agree with the prosecution that the use of Facebook and Twitter could enhance the dissemination effect of the physical activities organized by the Alliance, such as the June 4^th Assemblies.

468.The Alliance posted on its Facebook “1st July 2020 Statement of the Alliance”, “ ‘National Security Law in Hong Kong’ – Trampling human rights and rule of law; destroying ‘one country, two systems’ ”, making the following comments on the NSL which had just been implemented[284]：

“The crimes prescribed by Chapter III cover Secession, Subversion, Terrorist activities, and Collusion with a Foreign Country or with External Elements to Endanger National Security etc.

The definition of ‘#Secession’ emphasises that criminal behavior is not limited to the use of force, and it clearly targets peaceful speech. Likewise, (in defining) ‘Subversion’, the description of non-violent ‘other unlawful means’ is included, so its scope is far and wide. Combining (the expressions of) ‘overthrowing or undermining the basic system established by the Constitution of China’ with ‘the socialist system is the fundamental system of the CCP’, Hong Kong people are prohibited to oppose one-party dictatorship. ...

Articles 37 and 38 point out that regardless of whether # a person is a resident or not a resident of Hong Kong, even if the crime prescribed by the NSL is committed outside of Hong Kong, (the person) can still be charged, thereby deterring international and domestic partners who support Hong Kong from coming to Hong Kong.

…”

At the end of the post, it stated：

“In the face of the NSL, #the Alliance’s position remains unchanged, still adhering to the Five Action Agendas, opposing one-party dictatorship, preserving the memory of June 4 and supporting China’s democracy movement. However, in the face of increasing serious risks, we must also have coping strategies to prepare for long-term resistance…”

Having considered the context of the post, the Court is of the view that it clearly shows that even after the implementation of the NSL, the Alliance, apart from continuing to uphold “ending one-party dictatorship”, also envisaged that some of its supporters would carry out this Action Agenda and would deploy means that, although non-violent, might still constitute “other unlawful means” under the NSL, thereby facing “increasing serious” risks.

469.The Alliance created a post on 28^th February 2021[285]on Facebook titled “Never forget June 4^th Incident Reverse verdict on 1989 Pro-democracy movement”[286], quoting the speech of SZETO Wah in a motion for debate in the LegCo in 2004, excerpted as follows:

“Senior Chinese officials have opined that the Alliance must abandon its slogan of ‘ending one-party dictatorship’ before the Chinese side will communicate with those local democrats who are members of the Alliance. My reply is: The five operational goals of the Alliance are ‘to release the dissidents, vindicate the 1989 pro-democracy movement, square accountability for the 4 June massacre, end one-party dictatorship and build a democratic China.’ If we are to abandon the slogan of ‘ending one-party dictatorship’, are we also supposed to relinquish the one on ‘building a democratic China’ as well? How can a failure to ‘end one-party dictatorship’ ‘build a democratic China’? Are these officials also against the idea of ‘building a democratic China’? Do they think that ‘building a democratic China’ is also a form of antagonism and subversion? It can thus be seen that the so-called ‘communications’ is nothing but a means employed to make us abandon our aspirations to democracy and freedom and live on forever as the obedient subjects of ‘one-party dictatorship’.” (Translator’s Note: The English translation is adopted from the official minutes of the LegCo dated 12^th May 2004)

470.The Court has no doubt that what is stated above reflected the usual stance of the Alliance, which was also the stance respectively indicated by the other defendants (including D2 and D4) of the case all along. Moreover, the Court is of the view that when the Alliance chose to reiterate this stance after the implementation of the NSL, its purpose obviously was to make it clear to the public that it remained consistently committed to upholding the proposition of “ending one-party dictatorship” and would not abandon its long-standing resistance line for seeking a chance to communicate with the Central Government. The Court declines to accept that when the Alliance refused to communicate with the Central Government, its Standing Committee members would genuinely wish to achieve the goal of “ending one-party dictatorship” by promoting the amendment of the Constitution.

471.The Facebook post of the Alliance dated 27^th April 2021[287] was about an interview D4 had with RTHK，during which she stressed that the Five Action Agendas were the objects of the Alliance and there was no thought of changing them. D4’s reply was consistent with the stance of the aforesaid post.

AA.5  The physical June 4^th Museum

472.As regards the physical June 4^th Museum, the evidence shows that the Alliance was the owner and operator of the premises. Schedule 7 in Part K of the “Admitted Facts” sets out clearly the various items found upon search in the June 4^th Museum and the locations where they were seized. The evidence shows that the June 4^th Museum was open to the public during the charge period, and some of the seized items would be provided to the public (for a fee or free). What is undisputed is during the charge period, the purpose of the Alliance in operating the June 4^th Museum, in addition to displaying items relating to June 4^th, was also to promote the political beliefs of the Alliance to the public; it also served as the office of the Alliance and a venue for holding activities such as press conferences.

473.The Court believes that the visitor capacity of the June 4^th Museum would be smaller than the number of attendees for the June 4^th Assembly in Victoria Park. In contrast to the annually held June 4^th Assembly, the June 4^th Museum could offer a fixed location on a long-term basis for the public to visit, so that they could access information relating to “ending one-party dictatorship” of the Alliance, an example of which included the USB sticks seized by the police, which contained documents titled “Different Stages of Development and Challenges of the Alliance”[288]. Hence, the Court agrees with the prosecution’s closing submission that the Alliance: “Provided to others (whether for a fee or not) USB sticks containing such content not merely to provide content on the June 4^th Incident, but also intending that people who obtained the USB sticks would understand through the documents the development stages of the Alliance at different periods, the challenges confronting it and its future policy and strategy for the implementation of the Five Action Agendas; thus this was obviously a medium to spread the ideologies of the Alliance and to gain support.” 

474.The evidence shows that the promotional items provided to the public by the June 4^th Museum (for example, various items like stationery and clothes) were printed with the words “end one-party dictatorship”. Apart from being related to the June 4^th Incident[289], some of these items also bore the ambigram of “Hong Kong/Add Oil”[290], which was commonly seen in Hong Kong’s social movements, demonstrations and resistance actions. Taking into account the social situation of Hong Kong during the charge period, the Court believes that the Alliance not only hoped to promote the proposition of “ending one-party dictatorship” with those promotional items, but it also hoped to use the promotional items with themes of resistance to rally or attract local protestors in the social movements to join and bolster its camp. The Court is sure that these arrangements must have been made with the consent and permission of D2 and D4.

AA.6  Website of the June 4^th Museum

475.The Court has considered the relevant evidence of the June 4 Memory & Human Rights website retrieved by the police from the internet.[291] The Court notes that both D2 and D4 have said in their evidence that the Museum had been operating independently since around August 2021, but during the charge period, the Alliance’s Standing Committee had agreed to participate in setting up this website. The Facebook post of the Alliance, “Because of you people, the June 4^th online museum is officially launched” mentioned the connection between the Alliance and the website.[292] Furthermore, the website featured the programme booklets of the June 4^th Assemblies of the Alliance from 1990 to 2020. Based on the evidence before the Court, the Court accepts that the Alliance did participate in setting up the website.

476.The Court considers that apart from preserving the memory of the June 4^th Incident of the people concerned, the website also enabled people who had attended the Assemblies to revisit what had transpired in the Assemblies, including messages about “ending one-party dictatorship”; it also allowed people who did not attend the Assemblies to receive a lot of messages in writing about “ending one-party dictatorship”.

AB.  “Co-conspirators’ ” speech

AB.1  In what capacity was the speaker speaking?

477.As to the admissibility of some of the speeches recorded in bundle TB4 as part of the evidence pursuant to the “co-conspirators’ rule”, the Court has already made a ruling and has given its reasons, which will not be repeated here. The Court accepts what D4 said in her testimony that if the speaker was speaking in the capacity of the Chairperson, Vice Chairperson or a member of the Standing Committee of the Alliance, then what was said represented the stance of the Alliance.

478.The Court has considered the following speeches contained in TB4, which was disputed by D4 as to whether they represented the stance of the Alliance and D4:

•  TB4/SN62: D3’s speech did not represent the Alliance’s stance.

•  TB4/SN63: D2 was stating his own stance, which did not represent the Alliance’s stance.

The Court has already set out the admissibility criteria under the “co-conspirators’ rule”. After careful consideration, the Court is of the view that, in this case, whether D2 and D3 made the above speeches on behalf of the Alliance or whether they made the speeches in the course of the Alliance’s activities are not conclusive factors and would not affect the admissibility of the relevant speeches. Even if their speeches did not represent the Alliance, there was no material difference between the content of the speeches and the stance of the Alliance and the other defendants. However, in deciding the issue of “doctrine of attribution”, the Court will carefully consider whether the words and deeds of D2, D3 and D4 represented the “directing mind and will” of the Alliance, so that their unlawful intention and acts ascertained by the Court could be regarded as the intention and acts of the Alliance.

AB.2  Consideration of weight

479.The Court has considered the weight that should be given to the evidence admitted under the co-conspirators’ rule against the various defendants not present when the statements were made (TB4/SN60, SN62, SN63, SN67, SN68, SN71 and SN72).

480.Regarding the relevant part of SN60[293], when D2 testified online before the U.S. House Committee of Foreign Affairs, he introduced himself as the chair of the Alliance. It was plain that D2 spoke in the capacity of the Chairperson of the Alliance. He expressed that notwithstanding the passing of the NSL, they would still adhere to their proposition of “ending one-party rule” and would not retreat, and would continue to organize activities that had been organized previously. When D2 made the speech, D4 was not present. However, D4 confirmed in her testimony that the above speech was consistent with the stance of the Alliance.

481.Regarding the relevant part of TB4/SN62,[294] D3 said in the interview he had with “Experts on Current Affairs” that they would continue to do what they considered to be meaningful and would persist in demanding to “end one-party dictatorship”, and that if the law did not allow it, he would rather bear the legal consequences. D3 said that they would strive for it and hoped that it would persist in the long run, that they would continue to unite with the Hong Kong people who had the courage to stay behind and that they would persist in what they did, however difficult it was. D3 also said they would carry on with the tradition of June 4^th vigils and they would disobey orders if there was no other way. At that time, D2 and D4 were not present. D4 stated in her testimony that the above speech of D3 did not represent the Alliance. The Court will not draw any adverse inference against the other defendants because of the guilty plea of D3. Hence, the Court will not use what D3 said in SN62 indicating that he himself was willing to bear the legal consequences as evidence against the other defendants. However, other than that, the Court opines that there was little difference between what D3 said in SN62 and the stance of the Alliance, D2 and D4.

482.Regarding the relevant part of TB4/SN63[295], D2 was asked about the NSL when he was interviewed in “Precious Dialogues”; D2 stated they would uphold the Five Action Agendas because no backing-down and no retreat were very important. He also said not retreating was protecting the entire movement because when other people saw that, they would not retreat either. People would stay together, shoulder to shoulder and hand in hand. If one side retreated, it would affect the entire movement, so he opined that people definitely had to continue with what they had been doing previously. When D2 said these words, D4 was not present. D4 stated in her testimony that the above speech of D2 reflected his personal stance and did not represent the Alliance’s stance. However, she agreed that generally speaking, “no retreat” was the stance of the Alliance. D4 herself agreed with D2’s speech about “no retreat”.

483.Regarding the relevant part of TB4/SN67,[296] at the press conference held at the June 4^th Museum in commemoration of SZETO Wah, D3 said (people) should never give up, however difficult it was, as perseverance brought hope and when there was hope, there was a chance of success and victory. D3 also stated that the Alliance would continue to keep going. On the same occasion, D2 mentioned that the CCP was aware of the Five Action Agendas of the Alliance, and stated that they were mentally prepared and would carry on with their work fearlessly. When D2 and D3 made the speeches, D4 was not present. D4 confirmed in her testimony that D2 and D3 spoke at an event of the Alliance and their speeches were consistent with the Alliance’s stance.

484.Regarding the relevant part of TB4/SN68[297], when D4 was interviewed at the June 4^th Museum, the Court notes that at that time, she was responding to questions put to her by reporters. She stated that the Alliance would uphold the Action Agenda of “ending one-party dictatorship” and indicated that if an organization abandoned its most essential agenda, its existence was meaningless. Though D4 said she did not intend to encourage anyone to continue to “end one-party dictatorship”, the Court opines that she must have understood some of the Alliance’s supporters would be encouraged by the above speech and would continue to uphold the Action Agenda of “ending one-party dictatorship”.

485.Regarding the relevant part of TB4/SN71[298], as stated above, D4 was participating in a demonstration activity jointly organized by the Alliance and LSD at that time. She confirmed that she was speaking in the capacity of a representative of the Alliance at that time. In her speech, D4 mentioned that the authorities invoked national security as justification to repress dissidents; she pointed out that China and Hong Kong “shared a common fate” and the two places had to put up resistance together, and only then was it possible to bring down the dictatorship of the CCP. During the activity, D4 and the participants chanted the Five Action Agendas, which included “ending one-party dictatorship”. As to the prosecution’s assertion that the Alliance would use online platforms to share information on activities so as to enhance the effect[299], D4 responded by saying the purpose of the demonstration activity was naturally to let the public know its stance, especially when effective communication was not possible at the scene. The Court opines that what D4 said and did on that occasion clearly was promoting the proposition of “ending one-party dictatorship”, encouraging protestors in the Mainland and Hong Kong to put the Agenda of “ending one-party dictatorship” into action and to “bring down” (D4’s words) the leadership of the CCP.

486.Regarding TB4/SN72[300], D2 said in an exclusive news interview at the June 4^th Museum that they would continue to uphold the Five Action Agendas and would not make any adjustment on account of the red line of the NSL, and he also said their perseverance was meant to bring a hope and a change; they would continue to fight for this goal until the last breath. At that time, D4 was not present, but she confirmed that what D2 had said was consistent with the Alliance’s stance. The Court is of the view that what D2 said in SN72 showed the various defendants were adamant that they would not adjust their acts to “end one-party dictatorship” on account of the NSL.

487.Having considered the prosecution’s evidence against D2 pursuant to the “co-conspirators’ rule” set out above, the Court is sure that the intention of D3 in SN62 and SN67 and of D4 in SN68 and SN71 was to encourage others to continue to engage in activities with the goal of overthrowing the rule of the CCP (even if those activities did not necessarily involve violence). The Court opines that what D3 and D4 said above was meant to promote the Action Agendas including “ending one-party dictatorship” and to encourage others to put them into action.

488.Regarding D2, the Court gives weight to what D4 said in SN68 and SN71 about “ending one-party dictatorship”. Such evidence, coupled with what D2 himself said in SN60, SN63, SN67 and SN72 about “ending one-party dictatorship” and breaking “the CCP’s dictatorship”, and the fact that D2 was also present and also made a speech when D3 made a speech in the press conference in SN67 – all this evidence supported the prosecution case that D2 actively participated in the subject joint enterprise in the capacity of a core member (the then Chairperson) of the Alliance.

489.Having considered the above evidence against D4 under to the “co-conspirators’ rule”, the Court is certain that in TB4/SN60 (D2’s testimony), SN62 (D3’s speech), SN63 (D2’s speech), SN67 (D2 and D3’s speech) and SN72 (D2’s speech), the intention of the above speeches of D2 and D3 was to encourage others to continue to engage in activities with the goal of overthrowing the rule of the CCP (even if those activities did not necessarily involve violence). The Court opines that the above speeches of D2 and D3 were meant to promote the Action Agenda including “ending one-party dictatorship” and to encourage others to put them in action.

490.Regarding D4, the Court gives weight to TB4/SN60 (D2’s testimony), SN62 (D3’s speech), SN63 (D2’s speech), SN67 (D2 and D3’s speech) and SN72 (D2’s speech) about “ending one-party dictatorship”. Such evidence, coupled with what D4 herself said in SN68 and SN71 about “ending one-party dictatorship” and shattering “the CCP’s dictatorship”, supported the prosecution’s assertion that D4 actively participated in the subject joint enterprise in the capacity of a core member (the then Vice Chairperson) of the Alliance.

IX.  Findings of facts

AC.  D2 and D4

491.Having carefully considered all the relevant testimonies and evidence, the Court makes the following findings beyond any doubt:

(1)  At all material times, the “end one-party dictatorship” of the Five Action Agendas of the Alliance was directed at the CCP and its goal was not to demand the CCP to return to the system of multiparty cooperation under the Constitution, but to end its leadership status under the Constitution, including its leadership status in the system of multiparty cooperation and political consultation. Moreover, the “end” referred to in the “end one-party dictatorship” clearly did not mean a “natural end”, but carried the meaning of “overthrowing” and “undermining”. This was well understood by the Standing Committee members (including D2, D3 and D4) of the Alliance;

(2)  At all material times, D2, D3 and D4 had been actively advocating and performing activities relating to the “end one-party dictatorship” Action Agenda of the Alliance in their personal capacities and as members of the Standing Committee. Their target audience was mainly people within Hong Kong. It also included people who participated in their activities and people who browsed the website of the Alliance;

(3)  When ordinary reasonable persons (especially people living in Hong Kong) received messages of the Alliance and those of D2, D3 and D4 relating to “ending one-party dictatorship”, they must have understood that the goal of the Action Agenda was to end the leadership by the CCP. They must also have understood that the defendants were encouraging other people to put this Agenda into action so as to end the leadership by the CCP;

(4)  D2, D3 and D4 had all along been hostile towards the CCP and the Central Government under its leadership. They adhered to the course of resisting the Central Government and refusing to make any compromise. D2, D3 and D4 did not believe that under the hostile atmosphere they had created, there was any possibility of having a peaceful dialogue with the Central Government;

(5)  Since some Mainland protestors were imprisoned in the Mainland for their involvement in the Charter 08 movement, and also because D2, D3 and D4 believed that there was no possibility that the Alliance could have a peaceful dialogue with the Central Government, D2, D3 and D4 did not believe that using the means of amending the Constitution to achieve the goal of “ending one-party dictatorship” was practicable, nor was this what they sought during the charge period;

(6)  After the implementation of the NSL, during the charge period, D2, D3 and D4 believed and understood that the Action Agenda of “ending one-party dictatorship” of the Alliance would contravene the Constitution. They did not genuinely and honestly believe that their words and deeds were not in breach of the NSL. They just refused to pull back from the brink and were bent on embracing the resistance line of the Alliance to the very end;

(7)  The Court did not overlook the fact that D2 and D4 had not proposed any specific method or timeline on how to carry out “ending one-party dictatorship”; furthermore, what they had said about “ending one-party dictatorship” was on public occasions or public platforms. However, the evidence of this case showed that even after the implementation of the NSL, both of them and D3 still continued to advocate and promote “ending one-party dictatorship”, and deliberately compared the “June 4^th Incident”, which happened more than 30 years ago, with the “Anti-ELAB” disturbance at that time, thereby stirring up the hostility of their target audience towards the CCP, eroding and undermining the public’s confidence in leadership by the CCP;

(8)  Even though D2 and D4 denied inciting others to carry out “ending one-party dictatorship”, in fact, not only did they “go all in” themselves, they also encouraged other Hong Kong people to learn from the experience of the Mainland protestors and follow their example to persist in the resistance;

(9)  Although the Alliance all along had not used or advocated violence or the threat of violence, after the implementation of the NSL, D2, D3 and D4 still continued to adhere to the Action Agenda of “ending one-party dictatorship” of the Alliance, utterly ignoring that this Action Agenda in fact was in breach of the amended Constitution in 2018. This falls within the scope of “other unlawful means” set out in the offence of “Subversion” in the NSL;

(10)  D2 and D4 intended to cause others to lose confidence in the CCP by stirring up hostility and causing division, so as to achieve the objective of undermining the fundamental/basic system;

(11)  D2, D3 and D4 intentionally encouraged supporters of the Alliance to wait for the right time to carry out the goal of “ending one-party dictatorship” with unlawful means. Even though they believed and envisaged that the acts of resistance may not necessarily involve the use of violence or threat of violence, those acts would be in breach of the NSL and carried a risk of long-term imprisonment. D2, D3 and D4 knew that what they had said and done might have already gone beyond the scope of lawful freedom of expression. Nonetheless, they paid no regard to it; and

(12)  D2, D3 and D4 intended and believed that if the incitees acted as incited, they would use unlawful means, i.e., means that were in breach of the Constitution and the NSL, with the view of subverting the State power under the leadership of the CCP.

492.Hence, for “Prohibited Act (1)” (i.e., “overthrowing or undermining the ‘fundamental/basic system’ established by the ‘Constitution’ ”), the Court finds that during the charge period, D2 and D4 had committed acts that constituted the offence of this case and they had the requisite mens rea.

493.As mentioned earlier, the Court does not accept that “Prohibited Act (1)” would definitely cause “Prohibited Act (2)” (i.e., overthrowing the body of central power); the two acts need to be considered separately. The Court has to make findings on the relevant facts based on all the evidence in this case. Having considered the evidence in this case and the submissions of the parties, the Court considers that the prosecution has failed to adduce sufficient evidence to prove “Prohibited Act (2)”. However, this does not affect the decision of the Court on “Prohibited Act (1)”.    

AD.  The Alliance

494.The relevant legal principle on the criminal liability of a body corporate mentioned earlier will not be repeated here.

495.During the material period, D2, D3 and D4 were elected to be Standing Committee members through an internal election. The evidence shows that members of the Standing Committee would inevitably serve as directors of the Committee. According to the evidence of D2 and D4, disputes, if any, would be resolved by the Standing Committee through voting. The Court accepts that the decision of the Standing Committee was decisive and binding.

496.The Court has no doubt that during the charge period, when D2, D3 and D4, in the capacity of the members of the Standing Committee, made speeches on “ending one-party dictatorship” and participated in the activities concerned, they were natural persons acting as the “directing mind and will” of the Alliance. The capacity of the three of them was “markedly different” from the servants or agents of the Alliance. This is because:

(1)   At all material times, D2, D3 and D4 were members of the board of directors of the Alliance; they were also Standing Committee members of the Alliance, serving as the Chairperson and Vice Chairpersons, respectively; and

(2)   The evidence of this case shows that when D2, D3 and D4 made speeches and took actions relating to “ending one-party dictatorship” in the capacity of the Standing Committee members, they were acting in accordance with the stance of the Alliance. In fact, there was no evidence to the contrary in this case. Hence, the relevant speeches and actions of D2, D3 and D4 were made on behalf of the Alliance.

X.  Verdict

497.The Court finds that the prosecution has proved beyond all reasonable doubt that during the charge period:

(1)  D2 and D4 instigated others to overthrow and undermine the “fundamental/basic system” established by the Constitution; and

(2)  They intended and believed that if the incitees acted as incited, they would use unlawful means, with the aim of subverting the State power.

Hence, the Court finds D2 and D4 guilty of the charge.

498.The Court finds that D2, D3 and D4 were the “directing mind and will” of the Alliance. Pursuant to the “doctrine of attribution”, the Court regards the aforesaid unlawful intention and acts of the three of them relating to the charge, which have been ascertained, as the intention and acts of the Alliance. Hence, the Court finds the Alliance guilty of the charge.

Mr Ned Lai, DDPP, Mr Ivan Cheung, ADPP and Ms Karen Ng, SPP of the Department of Justice, for the Prosecution.

Ms Priscilia Lam SC and Mr Kasper Fan, instructed by the Official Receiver’s Office, for the 1^st Defendant.

Mr Erik Shum, Ms Yvonne Leung, Mr Isaac Wu and Ms Yoyo Lau, instructed by Ho Tse Wai & Partners, for the 2^nd Defendant.

The 4^th Defendant appeared in person.

Annex